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

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