ILLINOIS POLLUTION CONTROL BOARD
October 20, 1994
FREEMAN UNITED COAL MINING
COMPANY,
Petitioner,
v.
)
PCB 94—194
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by G. T. Girard):
On July 15, 1994, Freeman United Coal Mining Company
(Freeman) filed a request for variance from the Board’s
regulations which limit the discharge for mine related effluent
to 1,000 mg/l of chloride. (35 Ill. Adm. Code 406.203(c) (1) (A).)
Freeman seeks a variance to allow a discharge of 1,500 mg/l of
chloride from its mine known as Orient #6 in rural Jefferson
County. Freeman asks for this temporary relief for two years to
allow Freeman to conduct a stream study of the effect of the
higher chloride concentrations.
On August 24, 1994, the Illinois Environmental Protection
Agency (Agency) filed its recommendation with a motion to file
the recommendation instanter. The Board granted the motion to
file instanter on September 1, 1994. The Agency is recommending
that the variance be granted with certain conditions. Freeman
waived hearing and no hearing was held.
The Board’s responsibility in this matter arises from the
Environmental Protection Act (Act). (415 ILCS 5/1 et seq.
(1992).) The Board is charged there in with the responsibility
of granting variance from Board regulations whenever it is found
that compliance with the regulations would impose an arbitrary or
unreasonable hardship upon the petitioner. (415 ILCS 5/35(a).)
The Illinois Environmental Protection Agency is required to
appear in hearings on variance petitions. (415 ILCS 5/4(f).)
The Agency is also charged, among other matters, with the
responsibility of investigating each variance petition and making
a recommendation to the Board as to the disposition of the
petition. (415 ILCS 5/37(a).)
BACKGROUND
Freeman is seeking this variance for discharges from
Freeman’s clarified pond (outfall 002) and the sediment pond
(outfall 003) used at Freeman’s mine known as Orient #6 located
2
in rural Jefferson County. (Pet. at 2.)1 Orient #6 is adjacent
to the Rend Lake Project’s Big Muddy Subimpoundment Area.
(Id.)
The mine encompasses 535 surface acres and over 9,000 acres of
underground mine area.
(Id.)
The mine employs about 250 people
and produces about 1.4 million tons of clean coal annually.
(Id.)
Outfall 002 discharges to Buck Creek and outfall 003
discharges to an unnamed tributary of the Big Muddy River. (Pet.
at 6.)
During clean coal production, mineralized groundwater and
other undesired mineral materials, all containing chlorides, are
removed with the raw coal. (Pet. at 2.) These materials are
subsequently removed during the raw coal processing and chlorides
are dissolved in the process water and accumulated in the coal
preparation plant water circuit.
(Id.)
The quantity of chloride
accumulated for release is dependent on the amount of chloride
materials mined with the coal, and cannot be controlled by
changes to mining or processing systems. (Pet. at 2—3.)
In June 1989, Freeman changed the extraction method for coal
at Orient #6 and began using the longwall mining method to
increase production, decrease cost and maintain competitiveness.
(Pet. at 3.) As a result of either the “new mining method or the
hydrogeology of the area” groundwater with a highly mineralized
content began to seep into the underground mine.
(Id.)
The mine
had been “essentially dry” before beginning to extract coal in
the current longwall manner.
(Id
.)
The amount of high-chloride
groundwater encountered has risen from near zero to 50,000
gallons per day.
(Id.)
Processing the coal also adds to the chloride content of the
discharge. During processing a coarse, fine refuse stream is
produced. Process water is used to pump the fine refuse to a
slurry disposal area where solids settle out. The water is
clarified and stored for reuse. (Pet. at 3.) Water from the
slurry pond is decanted to the clarified pond also for reuse.
Pumpage from the clarified pond to the coal preparation plant is
at a rate of about 1600 gallons per minute for reuse in
processing coal.
(Id.)
In the past Freeman diluted the chloride-containing water
using rainfall and two other fresh water sources. However, after
the change in mining methods in June 1989, there has been
insufficient dilution water available to lower the chloride
levels below the discharge standard. (Pet. at 4; Rec. at 3.) As
a result, chlorides have been accumulating in the system and
Freeman is now unable to discharge “without risking a violation
The petition will be cited as “Pet. at
_“;
the Agency
recommendation will be cited as “Rec. at
“.
3
of its permit conditions”. (Pet. at 4.) Freeman’s clarified
pond currently has chloride levels of about 1,200 mg/i, while the
slurry pond has in excess of 1,300 mg/i.
(Id.)
Freeman exceeded the 1,000 mg/i discharge standard for
chlorides during fourteen out of the fifteen months that outfall
002 discharged during 1992 and 1993. During that same period,
the discharge standard was exceeded three times from outfall 003.
(Pet. at 6.) During the fifteen months in 1992 and 1993, the
rate of discharge from 002 was on the average 780 gallons per
minute (gpm) with a maximum rate of 3,500 gpm. The discharged
chloride concentrations averaged 1,130 mg/i with a maximum of
1,232 mg/i. (Pet. at 5.) The discharge from 003, which
discharged every month, averaged 15 gpiu with a maximum of 75 gpm.
Chloride concentrations measures at outfall 003 averaged 625 mg/i
with a maximum of 1,100 mg/i. (Pet. at 5.)
REGULATORY FRAMEWORK
Freeman is requesting a
variance from the regulations at 35
Ill. Adm. Code 406.203(c) (1) (A), mine waste effluent and water
quality standards. Section 406.203 sets
forth
the procedures by
which water quality-based permits conditioned for chloride, total
dissolved solids, sulfate, iron and manganese may be established
by the Agency. Section 406.203(c) (1) (A) specifically provides:
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.
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship. (415 ILCS 5/35(a) (1992).) Furthermore, the burden is
upon the petitioner to show that its claimed hardship outweighs
the public interest in attaining compliance with regulations
designed to protect the public (Willowbrook Motel v. Pollution
Control Board (1st Dist. 1977), 135 Ill. App. 3d 343, 481 N.E.2d
1032). Only with such a showing can the claimed hardship rise to
the level of arbitrary or unreasonable hardship.
4
A further feature of a variance is that
it is, by its
nature, a temporary reprieve from compliance with the Board’s
regulations
(Monsanto Co. v. IPCB (1977), 67 Ill.2d 276, 367
N.E.2d 684),
and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter.
(Id.) Accordingly, except in certain
special circumstances, a variance petitioner is required, as a
condition to grant of variance, to commit to
a plan which is
reasonably calculated to
achieve compliance within the term of
the variance.
COMPLIANCE
PLAN
Freeman states that it
plans to
“achieve compliance with the
applicable regulations by first conducting a site-specific stream
study to determine what effects, if any, the high chloride
discharges will have on the local stream environment and use”.
(Pet. at 7-8.) Freeman asserts that the authority for this
approach is contained in the Section 406.203(c) (1). Freeman
argues that the regulation “assumes that a 1,000 mg/l chloride
concentration discharge limitation will not cause an adverse
effect on the environment, but also provides that stream studies
may be used to
justify
additional, alternative discharge
limitations”. (Pet. at 8.)
The anticipated stream study will require chemical and
biological sampling and analysis of the receiving stream during
all four seasons. Freeman will then submit the analyzed data and
conclusion to the Agency for consideration. Freeman anticipates
that the study will take approximately 18 months to complete and
cost between $30,000 and $50,000. (Pet. at 8—9.)
The Agency in its recommendation notes that Freeman has not
addressed any “adverse impact to the Rend Lake Conservancy
District public water supply that must be proven pursuant to 35
Ill. Adin. Code 406.203(c) (2)” in its stream study plan. (Rec. at
7.) Further, petitioner has not proposed an actual stream study
for the unnamed tributary that receives outfall 003 nor has
petitioner addressed a contingent compliance plan if the actual
stream study reveals an adverse impact in Buck Creek or the
unnamed tributary. (Rec. at 7.) The Agency, however, believes
that even with these deficiencies a variance should be granted.
(Id.)
The Agency does believe that certain conditions to address
those deficiencies should be required if this variance is
granted.
(Id.)
HARDSHIP
Freeman’ has attempted to comply with the 1,000 mg/l standard
through several past efforts including construction of two
freshwater lakes on the mine property to collect precipitation
runoff to provide water for dilution. (Pet. at 10.) Freeman has
5
also constructed large slurry disposal ponds for storage and
recycling and constructed a pumping system to pump fresh water
from Buck Creek and the Big Muddy rivers.
(Id.)
Such sources
were sufficient until mid—1991 when excessive groundwater began
to infiltrate the mine. (Pet. at 11.) The groundwater had to be
removed from the mine for safety reasons at rates approaching
50,000 gallons per day.
(Id.)
The pumped
groundwater contained
chloride levels exceeding 10,000 mg/i. (Id.)
Freeman has “exhausted all known supplies of dilution water”
and therefore has examined several methods for controlling the
amount of mineralized groundwater pumped from the underground
mining area. (Pet. at 11.) Rerouting the water into abandoned
underground portions of the mine poses a risk due to geologic
fault systems transecting the operation which might allow the
disposed water to migrate into other active areas. (Pet. at 11—
12.) Freeman argues that rerouting could cause the mine to flood
putting the employees in serious
jeopardy and requiring that
operations terminate. (Pet. at 12.)
Pumping the water into separate abandoned underground mines
in the area could lead to groundwater contamination and
subsidence due to water
inundation. (Pet. at
12.) Freeman has
sealed off a portion of the longwall mining area where the
mineralized groundwater is generated. However, it is unclear
whether this action will contain the water to the sealed area.
(Id.)
Freeman argues that treatment techniques for the removal of
chlorides are prohibitively expensive and not suited for
the
large quantities of water utilized at
the mine.
(Id.)
The
methods are so expensive, according to
Freeman, that if
required
the operation could be rendered unprofitable and no longer
viable.
(Id.)
Freeman argues that absent the variance it will be unable to
discharge without violating the permit condition and the standard
at Section 406.203(c)(1)(A). If Freeman is unable to discharge,
Freeman asserts that it will have no alterative but to close the
mine as continued build—up of chlorides will damage the process
equipment. (Pet. at 13.) Closure of the mine will result in a
loss of jobs as well as coal resources and would be a detriment
to “fair competition with neighboring coal mines” which already
have similar variances. (Pet. at 13-14.) Therefore, Freeman
argues that, denial of the variance would be an “arbitrary and
unreasonable” hardship. (Pet. at 14.)
ENVIRONMENTAL IMPACT
Freeman points out that two other coal mines in the area are
allowed higher chloride discharges. Consolidation Coal Company’s
Rend Lake Mine, three miles south of Freeman’s Orient #6, is
6
permitted to discharge 2000
mg/i of chlorides. Zieglar Coal
Company’s Old Ben #21 located six miles south of Orient #6, is
permitted to discharge 2800 mg/i. (Pet. at 14.) Thus, Freeman
states that “petitioner believes there is no reason to anticipate
any adverse effects on the stream environment or downstream lake
environment during the variance period”. (Pet. at 10.)
The Agency points out that the purpose of the proposed
variance is to allow Freeman to conduct a study to determine the
actual effects of higher chloride discharges. (Rec. at 6.) The
Agency believes that given the proposed chloride discharge
increase. (from 1,000 mg/l to 1,500 mg/l) the potential for
adverse impact appears minimal. (Rec. at 6.)
CONSISTENCY WITH FEDERAL LAW
Freeman asserts that the variance requested is consistent
with the Clean Water Act (33 U.S.C. 1251 et.
seq.)
as well as
USEPA effluent guideline and federal regulations. (Pet. at 14.)
The Agency also believes that there is no conflict with other
state or federal laws if the Board grants the variance. (Rec. at
8.) The Agency points out that there is no federal effluent
guideline for chlorides.
(Id.)
CONCLUS ION
Based on the record the Board finds that Freeman has
established that compliance with Section 406.203(c) (1) (A)
constitutes an arbitrary or unreasonable hardship. Freeman has
shown that alternative methods of compliance with the 1,000 mg/i
chloride discharge standard are less safe and less cost—
efficient. Without this variance Freeman may cease mining
operations.
The Board finds that temporary release of a higher
concentration of chloride, at levels specified in the variance,
does not pose a significant risk to environmental health.
Freeman will be conducting stream studies for
18 months to
examine the environmental impacts of the elevated chloride levels
during the term of the variance. Therefore, the Board and the
Agency will have more specific data available for making future
decisions at the conclusion of this variance.
The Board does share the concern expressed by the Agency
that the petition lacks a sufficient compliance plan. The
petition fails to explain how compliance will be achieved if the
stream study indicates a significant impact on the environment of
the higher discharge rate. Of a larger concern, is the petitions
failure to consider the impact to the Rend Lake Conservancy
District public water supply. For these reasons, the Board will
grant the variance with the conditions recommended by the Agency.
7
The Board finds that petitioner has established that a
variance should issue to Freeman’s facility known as Orient #6.
This opinion constitutes the Board findings of fact and
conclusions of law in this matter.
ORDER
The Board hereby grants to Freeman United Coal Mining
Company a variance from 35 Ill. Adm. Code 406.203(c) (1) (A) for
chloride discharges from outfalls 002 and 003 only, at the
facility known as Orient #6 in rural Jefferson County, Illinois,
with the following conditions to protect the environment in the
short term and generate sufficient information for a long—term
solution:
a) Variance shall commence on the date of the final Board
order and extend for a period of two (2) years. During
the term of the variance, chloride concentration in the
effluent shall not exceed 1500 mg/i.
b) Stream study plans for both discharges must be
finalized and submitted to the Illinois Environmental
Protection Agency within sixty (60) days of the final
Board order for comment and approval prior to their
implementation. The Agency has already sent Petitioner
a copy of the Agency’s ~a~lity Assurance and Field
Methods Manual (1987 revision) to ensure consistency
with other stream studies. Petitioner may contact the
Agency’s regional biologist, Robert Hite, at the Agency
office in Marion for additional assistance.
c) Petitioner shall conduct an actual stream study to
determine if the discharge of elevated chlorides will
or will not cause an adverse impact on the environment
in and around Buck Creek, the stream receiving
discharge from outfall 002 and on the unnamed tributary
receiving from outfall 003.
d) Petitioner shall develop a contingency plan to reduce
and control chloride concentrations within basins
tributary to outfalls 002 and 003.
e) Petitioner shall conduct an evaluation of the projected
long-term effects of elevated chloride discharges on
the Rend Lake Conservancy District Public Water Supply.
The evaluation must address the cumulative impact of
all reasonably known elevated chloride discharges to
Rend Lake.
8
f) During the actual stream study the petitioner shall
endeavor to continue its current dilution practices
using existing dilution water sources.
g) The Petitioner shall submit to the Agency, at least one
hundred eighty (180) days prior to the expiration of
this variance, the results of the actual stream study
and the results of the chloride reduction and control
practices addressed above, and either:
1. A NPDES permit application requesting an increase
in permit #1L0004707 effluent limitations for
chlorides, in accordance with 35 Ill. Adm. Code
406.203, or
2. A NPDES permit application which includes a
complete compliance plan to reduce the discharge
chloride concentrations to less than 1000 mg/l, to
comply with 35 Ill. Adm. Code 406.203(c) (1) (A).
h) If an extension of the variance is necessary, the
Petitioner may submit a petition to extend the
variance, with the above studies and a complete
compliance plan, as required by 35 Ill. Adm. Code
104.123.
i) Petitioner shall make interim progress reports to the
Agency at ninety (90) day intervals beginning at ninety
(90) days from the Board Order. These interim progress
reports shall address all the above studies and should
be sent to:
Illinois Environmental Protection Agency
Mine Pollution Control Program
Attn: William C. Ryan
2309 West Main Street
Marion, Illinois 62959
j)
All other provisions of the NPDES Permit and Board
effluent limitations shall be met.
Within forty-five (45) days of the date of the final Board
order in this PCB 94-194 proceeding, Petitioner shall
execute and forward to Richard C. Warrington, Division of
Legal Counsel, Illinois Environmental Protection Agency,
2200 Churchill Road, P.O. Box 19276, Springfield, Illinois
62794-9276, a Certificate of Acceptance and Agreement to be
bound to all terms and conditions of the variance granted.
The forty-five (45) day period will be held in abeyance
during any period that this matter is being appealed.
Failure to execute and forward this Certificate within
9
forty—five (45) days shall render the variance null and
void. The form of the Certificate shall be as follows:
CERTIFICATION
I (We),
,
hereby
accept and agree to be bound by all terms and conditions of the
Pollution Control Board’s _______________________, 1994 order
in PCB 94—194.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the ab9~yeopinion and order was
adopted on~the~9~Y~-day of
~‘-z~-’.
-
,
1994, by a
vote of ~5
- ~.)
Illinois
Control Board
