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).
    70-102

    —2—
    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.
    70-103

    —3—
    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
    70-104

    —4—
    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

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