ILLINOIS POLLUTION CONTROL BOARD
June 5, 1986
WHITE COUNTY
BOARD
)
Petitioner,
V.
)
PCB 85—174
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD (by R. C. Flemal):
This matter comes before the Board upon an April 30, 1986
Motion for Reconsideration filed by the Illinois Environmental
Protection Agency (“Agency”). The Agency requests that the Board
reconsider its March 27, 1986 Opinion and Order in this matter.
On that date the Board granted the White County Board (“County”)
variance relief from 35 Ill.
Adrn.
Code 406.106, but denied the
County variance from 35 Ill. Adm. Code 406.108 on the ground that
relief from the latter section was unnecessary. The Agency
argues that due to the construction activities planned by the
County, Petitioner is in need of variance relief from 406.108.
The Board agrees, and will consequently grant the Agency’s Motion
for Reconsideration, as well as vacate a portion of the March 27,
1986 Order so as to provide the County with variance relief from
406. 108.
The Board initially held that the County could not be
defined as a “mine operator”, and that the construction site at
issue in this case was not one falling within the definition of
“affected land”, as those terms are defined by 35 Ill. Adm. Code
402.101. 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 otherwise used by the
operator in connection with mining activities...” Section 402.101
defines “mining activities” as
all activitites 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).
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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).
“Mine Refuse Area” is defined by 402.101 as
“any land used for dumping, storage or
disposal of mine refuse” (emphasis added).
As detailed in the Board’s March 27, 1986 Opinion and Order,
the County proposes to use mine refuse as core material for the
construction of a roadway embankment.
As a consequence of the construction activity proposed by
Petitioner, the County will, for the purposes of Board
regulations, clearly 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. The Board reaffirms its belief that denial of the
variance relief requested by the County would constitute an
arbitrary or unreasonable hardship to Petitioner, and that such
hardship would not be justified by the Probable environmental
impact resulting from construction of the embankment. The Board
will therefore grant Petitioner the variance relief it requires.
This Supplemental Opinion constitutes the Board’s
supplemental findings of fact and conclusions of law in this
matter.
ORDER
The April 30, 1986 Motion for Reconsideration filed by the
Illinois Environmental Protection Agency is granted.
The Board’s Order of March 27, 1986 in this matter is
vacated.
That portion of the Board’s March 27, 1986 Opinion which
discussed the inapplicability of variance reflief from 35 Ill.
Adin. Code 406.108 to the construction proposed by the White
County Board is hereby vacated.
The White County Board is hereby granted variance from 35
Ill. Adm. Code 406.106 and 406.108 until March 27, 1991 or until
completion of the roadway embankment which is the subject matter
of this variance proceeding, whichever occurs first, subject to
the following conditions:
a. The operation plan submitted with the project permit
application shall be implemented as submitted.
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b. After completion of phase 1, all disturbed areas shall
be mulched or erosion control blankets applied. All
disturbed areas that will not be redisturbed during
phase 2 shall be mulched and seeded.
c. Quarterly project reports shall be submitted to the
Illinois EPA until project completion. Reports shall
include general progress and sediment control structure
maintenance work completed during the quarter.
d. Petitioner shall submit the quarterly project reports
and execute a certificate of acceptance in the following
form:
Within forty—five (45) days after the date of the Board
Order the Petitioner shall execute and send to:
Ron Barganz
Mine Waste Program
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62706
a certification of acceptance of this variance by which
it agrees to be bound by its terms and conditions. This
forty—five (45) day period shall be held in abeyance for
any period during which this matter is being appealed.
The form of the certification shall be as follows:
CERTIFICATION
The White County Board has received and understands the May
22, 1986 Supplemental Opinion and Order of the Illinois Pollution
Control Board in PCB 85—174 and hereby accepts said Supplemental
Opinion and Order and agrees to be bound to all of the terms and
conditions thereof.
White County Board
By: James P. Taylor
Chairman, White County Board
Date
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IT IS SO ORDERED.
Board Members, Jacob D. Dumelle and Ted Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the abov~..e Supplemental Opinion and
Order was adopted on the
_____________________
day
of
—,
1986, by a vote of
~$—~‘
~
Dorothy M. unn,’Clerk
Illinois Pollution Control Board
70- 105