ILLINOIS POLLUTION CONTROL BOARD
February
7, 1980
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v
PCB 75~488
MATERIAL SERVICE CORPORATION,
a Delaware Corporation, FREEMAN
UNITED COAL MINING COMPANY
DIVISION,
Respondent
MR. MARVIN
I. MEDINTZ, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF
OF
THE
COMPLAI1NANT,
MR.
RICHARD
R.
ELLEDGE
APPEARED
ON
BEHALF
OF
THE
RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by
Dr.
Satchell):
This matter comes before the Pollution Control Board upon a
two count complaint filed December 19, 1975 by the Environmental
Protection
Agency
(Agency)
alleging that Freeman United Coal Mining
Company
(Freeman)
,
a Division of the Material Service Corporation,
violated Rules 201 and 502 of the Board~sChapter
4:
Mine Related
Pollution
(Rules)
relating to the permit requirements of the
abandonment of their 3800 acre Banner No,
27 mine located in both
Banner Township, Fulton County and Timber Township, Peoria County,
Illinois.
Following continuances granted to both the Agency
(filed
April
16,
1976)
and to Freeman
(filed May 19, 1976)
,
a hearing was
held in Peoria, Illinois on August 27,
1976.
A stipulation of
facts was presented,
an agreement to submit briefs,
and a brief
summary of the facts by Respondent constituted the hearing.
No
testimony or citizen comments were forthcoming.
The stipulated facts are enumerated,
in pertinent part,
as
follows~ Material Service is successor by merger to the
United Electric
Coal
Companies
(United) which operated a
coal
mine
known as Banner 27 mine.
United ceased operations
February 23, 1974 after producing nine million tons of coal
since
its opening in 1959,
Thereafter United completed all
37~275
reclamation procedures required under the Surface~MinedLand
Conservation Act, Ill.
Rev. Stat.
Ch.
93,
Sec.
201, et
(1975)
and sent to the Agency on March
20, 1974 a notification
of abandonment.
On September 19,
1974, William N. Busch of
the Agency sent a letter to United that Rule 502 of the Rules
requires an abandonment permit to be obtained within one year
after abandonment.
United submitted an application to the
Agency on February 17,
1975 and extended the 90~daydecision
time to August
1,
1975 during which period United met with
the Agency to discuss appropriate procedures particularly
with respect to the gob pile and water quality.
On July 30,
1975 the Agency denied the permit for lack of ~an acceptable
proposal for covering the gob. pile
.
“
From that date to
the date of filing the complaint herein, United neither ap~
pealed the permit denial nor submitted a reapplication to
the Agency.
Subsequent to filing the aforementioned complaint the
parties undertook discovery, engaged in settlement di~cussions
and jointly collected additional water samples.
In light of the above, both parties believe that the
public interest will be best served by an expeditious reso~
lution of the instant action under the terms and conditions
herein provided without
a protracted hearing, and further
that the undertakings provided herein satisfy all require-~
ments of the Act.
~la
ted Facts Relatin
to the Liti ation
l,* All parts of the gob pile placed after May
25,
1972
had been graded and vegetated pursuant to Rule
401(e)
prior
to December 19,
1975,
2.
Water samples taken by both parties on February 28,
1975, March 19,
1975 and February 27, 1976 upon analysis
showed:
(1)
a pH ~
7 everywhere except at the pond at the
base of the gob pile,
(2)
TDS substantially in excess of
1000 mg/l at almost every sampling point.
The Board observes
Exhibit “B~delineates the sampling points and directions of
water flow and shows the general shape and size of the mined
area
which
lies adjacent to and along the northwest bank of
the Illinois River for a distance
estimated from section
lines
to be in excess of five miles.
It is apparent from
this exhibit that waters effluent from the area would dis-~
charge to the Illinois River.
The general shape of the
area is long and fairly narrow being perhaps as wide as
1 1/2
miles at its broadest point.
Laboratory analyses are shown
in Exhibit
“C”.
*
Numbers relate to paragraph numbers in the Stipulation
as follows:
1
11,
2
=
12,
etc.
37~276
3,4.
The new abandonment permit submitted on February 5,
1976 was denied by the Agency on April
16, 1976 for:
A.
Failure to cover and revegetate the acid pond area.
B.
Failure to provide for neutralizing, fertilizing
and revegetating the rest of the gob pile.
C.
All sampling points had a TDS concentration in
excess of standards set by Rule 203 of Chapter
3:
Water Pollution.
5.
It was the Agency’s position at the time of the
denial that stabilizing and revegetating the gob pile was
necessary and that the acid pond needed to be filled and
covered.
6,7.
On June 19, 1976 representatives from both parties,
including attorneys, made an on~the~siteinspection after
which the Agency concluded that conditions of the gob pile
and acid pond would have a very minimal impact on overall
water quality.
A new potential problem was observed by the
Agency which was the drying up of areas of the slurry pond
which might be subject to wind erosion and cause air pollu—
tion; however, the high banks around the pond were deemed
sufficient protection.
8.
On June 23, 1976 Respondent reapplied for an abandon-
ment permit to the Agency, Exhibit
“E”.
9,10.
While technically feasible to reduce the TDS of the
site waters,
it is not economically feasible in the absence
of over-riding health and/or security reasons.
11.
The site in its present condition is well suited for
recreational purposes such as boating,
fishing, hunting and
wildlife management.
The Department of Conservation (Depart-
ment)
is currently negotiating with the several owners to
acquire the entire site for use
as
a wildlife refuge and
public recreation area.
The Department~sexperts have
ascertained the waters are well suited for fish,
fowl and
other wildlife growth.
The Department has petitioned the
Illinois Commerce Commission to acquire by condemnation a
parcel of land owned by Central Illinois Light Company.
Exhibit
“F” shows certain testimony presented by the Depart-
ment in that proceeding
(ICC Docket No.
51913)
delineating
—4—
the scope and
status of the program
as well as testimony
regarding the quality of the waters.
12.
The position of the Agency is that no useful purpose
would be served by reducing TDS in
site
waters for the use
proposed
by
the Department.
13.
The parties call to the 3oard~sattention a proposed
regulatory change
(PCB R76-7)
to permit increased TDS concen-
trations in mine waters.
14.
The Agency contends it
has
no authority to issue a
permit
without a proposal
to
reduce TDS to the levels mandated
by Rule 203 of Ch.
3: Water Pollution.
15,16.
Material Service Corporation contends that a proposal
to reduce TDS would be “useless and perhaps evasive” consider-
ing the uses contemplated for this site and without such a
proposal a variance
could not
be granted,
Likewise an appeal
for a permit denial based on the above stipulated facts would
only delay resolution and incur additional expense.
17.
The Agency concurs that either a variance or permit
appeal would only delay
a decision.
18,19.
The Agency contends
and
Respondent denies that a
penalty should be imposed.
The Closing Argument of Complainant reveals that the
June
23, 1976 application for permit was denied.
The Brief
for Respondent states there is a very substantial volume of
water flowing on and across
the
mine site which
is protected
from the waters of the Illinois River by a series of levees
maintained by a drainage district.
Site waters are drained
to a pumping station maintained by the Banner Drainage Dis-
trict and pumped into the Illinois River,
(Resp.
Brief at 2).
Further information is
given
about the conditions of the
site
waters by testimony
of
E.
E.
Filer, Supervisor of the
Division of Land Reclamation, Illinois Department of
Mines and
Minerals:
The mined lands are extensive enough to provide a
practical sized work and
development area.
It is more or less
enclosed by U.S.
24,
the Illinois
River, and Copperas Creek.
A levee keeps water from the river and Copperas Creek from
moving in and out
of
the area,
a most important feature
to
prevent sedimentation, pollution, and to make possible a
N
7—27R
—5—
stable water
level.”
(Stip. Ex.
F),
In the same proceed-
ings, Kenneth C.
Russell, Department of Fisheries Biologist,
states:
“Waters on the site have an everage total alkalinity
of 176 which represents high fish productivity.
This proposed
project, having a projected 1300 acres of manageable
fishing
waters
could support at least 18 species of sport fishes.
.
nearly
50 separate lakes and ponds on the area.”
The testimony
of Phillip E. DeTurk
(Id), Department~sSupervisor of the Site
Planning Division, reveals the total area the Department seeks
and also the source of waters:
“The 5141 acres represent a
project total.
The marsh area contains approximately 4007
acres.
.
.
.
The water supply will consist of three primary
sources:
There will be a ground water supply fed into the
marsh
through the deep cuts of the mining operation; there
will be surface water runoff from the adjacent wooded bluffs;
and finally
there will be Illinois River water filtered and
cleaned of silt and pollutants
as it seeps into the marsh area
through the ground under the levee.”
In mitigation the Board has considered Section 33(c)
of
the Act.
The depressed nature of the site minimizes the pos-
sibility of waters seeping from the site to cause environmental
harm.
The social and economic value of the site
is well docu-
mented by the Department of Conservation~s efforts to obtain
it.
Its location
is particularly fortuitous for the intended
recreational and wildlife use,
being near to population centers
and adjacent to a major waterway so that any effluent effects
should be negligible.
The tremendous volume of water and the
lack
of
showing of any environmental harm because of the dis-
solved solids
seems to indicate an unreasonable burden on the
Respondent to attempt to reduce the concentrations of salts
in this case.
While part of the gob pile mined prior to 1972
“pre—law land” has not been covered,
the Agency believes the
acid drainage would have no effect because of the tremendous
dilution afforded by the alkaline waters
into which the acid
pond drains.
In addition, this small acid area would provide
an interesting ecological area if the site
is developed as
intended.
—6—
The Board notes that
since the filing
of this case
there has
been
considerable change
in the law applicable
to abandonment of
mine areas.
In 1979 the legislature adopted the Surface Coal
Mining Land Conservation
and Reclamation Act.
The proceedings
proposal to exempt
coal mining from the TDS water quality limita-
tion, R76-7, have been completed and entry of a Final Order stayed
pending the outcome of
~thegen~ Chapter
4 revisions, R77-l0.
The Board has recently entered an Order in that proceeding which
proposes
to replace the abandonment permit of Rule 502 with an
abandonment plan under new Rule 509.
The Board has also oroposed
Rule
605.1 which would authorize a temporary exemption from the
TDS water quality standards applicable
to Respondent.
The Board
will therefore order
Respondent to apply
for new permit
containing
a
Rule
509
abandonment plan pursuant
to
the transitional provisions
of
new Rules 702
and 704.
Respondent will have 180
days after
the
effective
date
of Chapter
4 to make such
application.
This Order
will be subject
to
modification in the event the Final Order of
R77-lO differs materially
from the Proposed Order.
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:
1.
Respondent Material Service Corporation and its Freeman
United Coal Mining Company Division violated Rules 201
and 502 of Chapter
4:
Mine Related Pollution by abandon-
ing the Banner No.
27 coal mine without securing the
required permits
from the Agency.
2.
Within 180 days of the effective date of the proposed
Chapter
4, Respondent shall complete and submit the
necessary
apnlication forms
to obtain a permit contain-
ing
an approved abandonment plan pursuant to Rules
401,
509
and 704 of the new Chapter
4.
I,
Christan
L.
Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify
tI’e above
Opinion and Order were
adopted on the
7hi.
day
of
,
1980 by a vote of ~—O
Christan L.
Mo,
t,
lerk
Illinois Polluti~iControl Board