ILLINOIS POLLUTION CONTROL BOARD
August 22, 1991
ZEIGLER COAL COMPANY,
Petitioner,
PCB 91—12
v.
)
(Variance)
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
KEITH PELUCHETTE APPEARED ON BEHALF OF THE PETITIONER; and LISA
ELIS MORENO APPEARED
ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by J.D. Duinelle):
This matter is before the Board on petitioner’s (“Ziegler”)
request for variance filed on January 22, 1991. Ziegler seeks a
variance from 35 Ill. Adm. Code 406.203(c) (1) (A) for its NPDES
discharge point as it relates to the company’s mining operation in
Randolph County. Hearing was held on July 10, 1991 and many local
citizens in addition to representatives of the Randolph County Farm
Bureau participated. In its variance recommendation of May 17,
1991 the Agency supported granting this petition contingent upon
certain conditions.
FACTS
The petitioner owns and operates the Ziegler Spartan
underground mine and adjacent Central Cleaning Plant, a coal
preparation plant serving several mines, located near Sparta,
Randolph County,, Illinois. The mine employs approximately 260
people and has an annual production of approximately 1,000,000 tons
of clean subbituminous coal. The mine and preparation plant are
covered by NPDES Permit #1L0055824, last issued on April 20, 1987.
This permit covers outfall 001, the discharge from a lime slurry
treatment system installed pursuant to IEPA v. Ziec~ler Coal
Company, PCB 75-280 to treat acid mine runoff from the coarse
refuse disposal area (“gob pile”).
The area tributary to outfall 001 consists of acid runoff
(average pH, 2.6) from both a 70.2-acre active refuse disposal area
which drains into Mine Lake No. 1, which also functions as the
treatment system collection basin and a 14.8 acre area which drains
into Mine Lake No. 2. The drainage from Mine Lake No. 2 is pumped
into Lake No. 1. Treatment consists of sodium hydroxide
neutralization in a flash mixer to raise the pH of the drainage and
to precipitate metals and assist settling in a two—cell
sedimentation basin, before discharge via outfall 001 to Mary’s
River, which is tributary to the Mississippi River.
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2
DISCUSSION
In its variance petition, Ziegler seeks relief from the 3,500
mg/l sulfate water quality limitations of 35 Ill. Adm. Code
406.203(c) (1) (A) for NPDES outfall 001 at its Spartan mine. Under
the provisions of 35 Ill. Adm. Code 406.202, mine discharges are
prohibited from causing violations of the sulfate water quality
standard of 3500 mg/l established by 35 Ill. Adm. Code 302.208(e).
Section 406.203 further sets out procedures whereby alternative
water qu,ality-based permit conditions may be established by the
Illinois, Environmental Protection Agency (“Agency”) for mine—
related discharges of sulfates. Under subsection (c), a discharger
may be allowed an alternative standard upon the following
demonstration:
1. the discharge will not cause an adverse effect on the
environment in and around the receiving stream, by either
demonstrating that the discharge will contain 3,500 mg/i
or less sulfates (subsection (c) (1) (A)) or through
performance of an actual stream study (subsection
2. the discharge will not adversely affect any public water
supply; and
3. good mining practices designed to minimize discharges of
sulfates (or other relevant parameters) are being
employed.
The problem which confronts Ziegler is directly related to its
operations. In order to produce a clean product, the company must
wash its coal. The refuse from this cleansing contains pyrite
materials such as iron and inangenese, and is stored in an area of
ten acres referred to as a “gob pile”. As these pyritic materials
are exposed to oxygen, sulfuric acid is created. When rain falls
on the gob pile, the sulfuric acid drains into a collection basin.
Acidity is balanced by the sodium hydroxide and the metals are
settled in holding ponds, but the sulfates remain in the water.
Moreover, the amount of sulfuric acid which drains into Ziegler’s
collection basin is directly related to rainfall amounts. When
rainfall is sporadic, the runoff produced by the gob pile is more
concentrated because a longer period of oxidation has produced more
sulfuric acid.
As a result, Ziegler has been unable to adhere to the 3,500
mg/l mandated by 35 Ill. Admn. Code 406.203(c) (1) (A). The chart
below sets forth the sulfate discharges by Ziegler over the last
two years.
MONTH
AVERAGE FLOW/MGD
SULFATE mg/i (MAX)
1991
Feb
No Flow
4232
Jan
Not Reported
2957
1990
Dec
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3
Nov
0.288
3555
Oct
0.495
3383
Sept
0.416
3295
Aug
Not Reported
4553
July
Not Reported
No Flow
June
No Flow
No Flow
May
0.960
4573
April
0.960
4241
March
No Flow
No Flow
Feb
0.960
3455
Jan
0.960
3444
1989
Dec
No Flow
No Flow
Nov
0.960
3519
Oct
0.960
3368
Sept
0.969
3649
Aug
0.960
3786
July
No Flow
No Flow
June
0.960
3342
May
No Flow
No Flow
April
0.960
2846
March
0.960
2673
Feb
0.960
3390
Jan
0.960
3345
In order to resolve this situation, the company has proposed
a stream study pursuant to Section 406.203(c) (1) (B) of the Code.
Once this study is finalized, Ziegler would either have the terms
of its NPDES permit altered or petition the Board for an adjusted
standard. It is the company’s position that a stream study is the
best possible environmental and engineering alternative.
Ziegler has taken this position after a long history of
sulfate problems. From 1980 until 1986, the company used lime in
order to reduce its effluent discharge. While sometimes effective,
this practice produced a great deal of sludge within the holding
ponds, thereby creating a constant removal problem. In addition,
the sulfate emissions were in excess of 3,500 mg/l. Consequently,
the company constructed a flash mixer which consists of sodium
hydroxide neutralization at a cost of approximately $150,000.
Although this process has served the company better than lime
treatment, Ziegler has been unable to comply with the 3,500 mg/I
standard in accordance with its NPDES permit. The one other option
which the company has considered, but has determined to be
infeasible, is water dilution from its fresh water lake. Ziegler
has rejected this alternative because this reservoir remains its
only fresh water source and is used for other needs.
The Agency agrees with Ziegler’s analysis. Joyce Munie, a
Permit Section Manager for the Agency in the Mine Pollution Control
Program, testified that the Agency has been aware of the company’s
problems for a long period of time and it was the Agency that
125—333
4
initially recommended a stream study. Ms. Munie explained that the
purpose of the stream study was to look at the biota of the
waterway in addition to the downstream uses and ensure that the
emissions from Ziegler’s source will not impact negatively upon the
naturally occurring organisms. Ms. Munie also pointed out that
physical treatments such as distillation or reverse osmosis could
reduce the company’s sulfate emissions, but that the cost of these
measures would effectively shut the company down.
In addition to the petitioner and the Agency, many citizens
participated in the hearing. Mr. Steve Staliman, Mr. Fred
Schupbach, Mr. Robert Robertson, Mr. Rudy Eggemeyer, Mr. Paul
Robertson and Mr. Kenneth Baird all asked relevant questions and
their participation aided the Board in assessing the instant case.
In general, these citizens were concerned that the quality of the
stream remain intact and not regress to the state it was in prior
to the regulations which became effective in 1984. Some of these
citizens have cattle who drink the water downstream and were
concerned about the long-term effects of sulfate ingestion. Other
concerns articulated were in the nature of untreated drainage
ditches which flowed into the tributary, whether the study would
be objective and whether a larger standard of permissible sulfate
emissions would result in more pollution. (Tr. at 73—99).
Of particular concern to the Board is a question posed by Mr.
Stallman; namely, why Ziegler’s gob pile has to be so large? (Tr.
at 82—83). For example, Larry Harp, Environmental Manager for
Ziegler testified that to date, the company has covered at least
45 acres of gob. (Tr. at 33). The company places dirt over the
pile and then seeds, thereby precluding runoff by preventing
oxidation. Mr. Stallman wanted to know why Ziegler could not make
smaller gob piles and cover them promptly and therefore prevent the
problem at its source. The answer furnished by Mr. Harp was, at
best, incomplete. As a result of this questioning, the Board is
very interested in this aspect and will address it as one of the
conditions to insure that the company is doing everything possible
to limit the transformation of coal refuse into sulfuric acid.
HARDSHIP
Based on the testimony of the company coupled with that of the
Agency, the Board finds that for Ziegler to immediately comply with
the sulfate limitations of its NPDES permit constitutes an
arbitrary or unreasonable hardship. The company has already. used
lime. Given the problems inherent with that practice, Ziegler
constructed its current flash mixer at a cost of $150,000. This
too has failed to produce the desired effect. Moreover, the Agency
testified that the physical treatments available to the company
(distillation and reverse osmosis) would be so costly that it would
shut operations down. Taken together, these factors clearly
indicate an arbitrary or unreasonable hardship.
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5
ENVIRONMENTAL IMPACT
The
environmental impact is largely unknown. Ziegler
represents that, in the past,, it has done informal studies which
indicate that even when its sulfate emissions are above 3,500 mg/i,
three hundred to four hundred feet downstream the sulfates were
measured between 500 and 600 mg/l. It is the company’s assertion
that is the dilution which takes place in the stream renders the
sulfates innocuous. The company therefore believes that a stream
impact s~udywill reveal no damage to the aquatic biota of the
waterway. While the Board welcomes a study of the stream, we are
not convinced of Ziegler’s assertations. The Agency also expressed
reservations about the company’ s claims. (Rec. at 3). As part of
the conditions within this variance, we will mandate that the study
include readings downstream where cattle are watered. Moreover,
we will insist that there be readings taken before and after
discharges are released from the holding ponds which exceed the
3,500 mg/i standard for sulfate.
CONCLUS IONS
Based on the information before us, we are convinced that
Ziegler is acting in good faith and at the behest of its neighbors.
We find that the company has presented adequate proof, that absent
a variance, it would suffer an arbitrary or unreasonable hardship.
We also find that the issuance of a variance comports with federal
law in this case. It should also be noted that while the
environmental impact is unknown, the record indicates that Ziegler
has exceeded the sulfate standard for quite some time. Within this
timeframe, there have been no ill effects directly traced to the
sulfate emissions. In fact, Mr. Schüpbach, who lives 1—1/2 miles
downstream from Ziegler’s emission source, stated that the water
quality of the stream has improved of late. (Tr. at 71).
At the same time, questions still remain. What effect will
the accumulation of sulfates have upon the river and how will it
affect those who live nearby? Does the apparent lack of short-
term effects thus far negate the possibility of long-term damage?
Aside from exceeding the sulfate standard, can the company alter
its gob pile policy to prevent excess oxidation and thus the
creation of sulfuric acid? These issues need to be resolved and
solutions can only be accomplished with more information.
Accordingly, the Board will grant Ziegler a variance from the terms
of 35 Iii. Adm. Code Section 406.203(c)(1)(A). Additionally, we
will request information from the company in regards to its policy
vis-a-vis the gob piles.
This constitutes the Board’s findings of fact and conclusions
of law in this matter.
ORDER
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6
Ziegler Coal Company is hereby granted a variance from 35 Ill.
Adm. Code 406.203(c) (1) (A) for a period of 18 months from the date
of this Order, subject to the following conditions:
a. Petitioner shall conduct an intensive 12-month stream study
to determine whether its high-sulfate effluent will cause an
adverse effect on the environmental in and around Mary’s
River, the receiving stream. Prior to commencement of the
study Petitioner shall submit to •the Agency a detailed plan
of study which shall address examination of the following:
1. Upstream and downstream flows during wet and dry whether
along with concentrations of sulfates in each instance;
2. Concentration of sulfates in the upstream and downstream
flows for each outfall and any combined effec~ts of
multiple outfails;
3. The quantity and quality of the discharge from outfall
001;
4. The effects the receiving stream may have upon its
downstream waters after confluence;
5. Upstream and downstream biota;
6. Comparison of the receiving stream with a similar stream
unaffected by sulfates;
7. Any other relevant information which is particular to
this discharge.
b. Concurrently with the intensive stream study, petitioner shall
conduct a study addressing the alternatives for the reduction
of sulfate in the discharge water from outfall 001, including:
1. .The dilution of treated water prior to discharge;
2. The utilization water containing elevated sulfate levels
as make—up water for the coal preparation plant!
3. The company shall, within 90 days of this variance,
submit a report to the Board and the Agency as to why
modification of the existing coarse refuse disposal plan
to minimize exposed refuse surfaces and decrease acid
mine drainage surface runoff and seepage cannot be
achieved at the source;
4. A determination of whether changing the reagent utilized
in the acid mine drainage treatment process will
influence the concentration of sulfates in the discharge
water.
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7
c. Upon completion of the stream and sulfate reduction studies
Ziegler shall submit to the Agency either:
1. An NPDES permit application requesting an. increase in the
applicable limitation for sulfates, in accordance with
35 Ill. Adm. Code 406.203(c) (1) (B); or
2. An NPDES permit application which includes a compliance
plan to reduce sulfate concentration s to 3,500 mg/i or
less, in accordance with 35 Ill. Adm. Code
406.203(c) (1) (A).
d. Petitioner shall submit to the Agency quarterly progress
reports beginning 90 days after issuance of the Board’s final
order. All reports required under this variance shall be sent
to the Agency as follows:
Joyce Munie, Permit Manager
Mine Pollution Control Program
Illinois Environmental Protection Agency
2200 Churchill Road, P0 Box 19276
Springfield,
Illinois
62794—9276
e. During the term of the variance the concentration of sulfates
in the discharge from outfall 001 shall not exceed 4,600 mg/i.
f. Special attention shall be taken so that readings are taken
downstream when sulfate emissions exceed the current limit.
g. Under no circumstances will Zeigler Coal Company alter its
current treatment process in reliance on this variance.
Within 45 days after the date of this Opinion and Order
Petitioner shall execute and forward to:
Stephen C. Ewart
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road, P.O. Box 19276
Springfield, Illinois 62794—9276
a certificate of acceptance of this variance by which it agrees to
be bound by the terms and conditions contained herein. The 45 day
period shall be in abeyance for any period during which the fl~atter
is appealed. This variance will be void if the Petitioner fails
to execute and forward the certificate within the 45 day period.
The form of the certification shall be as follows:
CERTIFICATION
I, (We),
,
having read the Opinion and
125—33 7
8
Order of the Illinois Pollution Control Board, in PCB 91—12, dated
August 22, 1991, 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 of the Environmental Protection Act (Ill. Rev.
Stat. 1989, 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 certify that/the above Opinion and Order was adopted
on the
~ day of ~?~k-
~
,
1991
by a vote of
7~’
Dorothy M. G~n, Clerk
Illinois Pollution Control Board
125— 338