ILLINOIS POLLUTION CONTROL BOARD
larch
27,
1986
WHITE COUNTY BOP~RD,
Petitioner,
PCB 85—174
ILLINOIS ENVIRONMENTAL
PRJTCCTION
AGE:ICY,
Respondent.
OPtNIO~
AND
ORDER OF THE
BOARD
(by
R.
C.
Flemal):
This matter
comes before
the Board upon
a November
27,
1985
petition
for variance filed
by t~eWhite County ~3oard
(“County”).
The County requests variance
for
a period
of five
years from 35 IlL
n~Code 405.106
(Effluent Standat-3s)
and
406.103
(Non—point Source ~1ineDischarges).
On
December
5, 1985
the 3oard
found
the variance Det~tiondeficient
in several areas
and ordered the County to submit additional
information.
The
County filed its response
on January
21,
1986.
The Illinois
Environmental Protection Agency (“Agency”)
filed
its
recommendation
in this matter
on February
25,
1986,
recommending
that variance be granted
to the County subject to conditions.
Petitorier waived
its right
to
a hearing
on
the petition.
For
the reasons discussed below,
the Board
finds that
Petitioner
is not
in need of variance relief from
‘406.l08,
but.
that the County will suffer
arbitrary or unreasonable hardship
if
denied variance relief from §405.106.
Therefore,
variance from
§406.106 will
be granted
to the County
for
a period
of
five
years, subject
to conditions~
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 1,090
industrial, commercial
and
business customers serviced by Petitioner.
White County employs
approximately 90 persons and expands approximately
$3.5 million
as
a consequence
of
its operations.
The County
is seeking variance relief
in this case
in
order
to construct
a roadway embankment utilizing mine
refuse as core
material.
The proposed project
is
located on County Highway
12
in
c’7hite County,
Illinois.
The project begins
336 feet north of
the intersection of County Highway
12 and State Hig~way14,
and
continues north along County Highway
12
a distance
of 2290
—2—
feet.
Petitioner proposes
to use approximately 18,900 cubic
yards
of mine refuse from white County Coal Company as tne core
material
for the embankment, which
is being built
in order
to
raise County Highway
12 above
t~iehigh water elevation.
The coal
company currently disposes
of this refuse by burying
it.
Approximately 5,400 cubic yards
of soil wiii be utilized
as
a two
foot “cover”
over
the mine
refuse
and as
a vegetative growth
med
iurn,
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,
i~35) tnat the
nature of the County’s oroposed actions
would require variance from certain
of the Board’s mine related
water
pollution regulations.
The County
is seeking variance
for
a five year period from
35
Ill..
Adm, Code 406,106 and 406.108.
Section 406.106 provides
that:
Section
406.106
Effluent Standards
a)
The effluent limitations contained
in
35
Ill,
Adm, Code
304 snail
not apply
to mine discharges or non—point
source mine discharges.
b)
No oer~onshall cause
or
allow
a mine discharge
effluent
to exceed the following levels of contaminants:
Storet
Constituent
Number
Iron (total)
Lead
(total)
Ammonia Nitrogen
(as N)
pH
Zinc
(total)
Fluoride
Total suspended solids
r4anganese
00435
Concentration
(total acidity shall
not exceed
total
alkalinity)
3.5 mg/i
1 mg/i
5 mg/i
(range
6
to
9)
5 mg/i
15 mg/i
35
mg/i
2.0 mg/i
1)
pH is not subject
to averaging.
2)
The ammonia nitrogen standard
is applicable only
to
an
operator utilizing ammonia
in wastewater treatment.
Acidity
01045
01051
00610
004 JO
01092
00951
00530
01055
—3—
3)
Any overflow,
increase
in volume of
a discharge or
discharge from
a by—pass system caused by precipitation
or snowmeit shall not be subject
to the
limitations of
this Section.
This exemption shall
be available only
if
the sedimentation basin or treatment works
is designed,
constructed and maintained
to contain
or
treat
the
volume of water which would
fail on the areas tributary
to the discharge, overflow
or
bypass during
a 10—year,
24—hour
or
larger precipitation event
(or snowmelt of
equivalent volume).
The operator shall have the burden
of demonstrating that the prerequisites
to an exemption
set
forth
in this subsection have been met~
4)
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
p9 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 no
active
mining,
processing or
refuse disposal has taken
place
since May
13, 1976,
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
finds
as
a threshold matter
that,
absent variance
relief, Petitioner would indeed need
to comply with §406,106
because that section
is aoplicable
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 §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
dumping,
storage
or disposal
of mine
refuse.
Thus,
§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 area3
as
a point
source discharge subject
to the effluent limitations of §406.106.
The Board
finds that §406.108
is not aoplicable, however,
to
the County’s embankment construction.
Section 406.108 requires
—4—
that surface drainage from the “affected land”
of
a coal mine be
passed tirou9h
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 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.
Neither
the site of the road embankment construction,
nor
the mine refuse
itself, can be
reasonably construed
to be
“affected land”
under
the definition above,
The construction
site
is not owned, controlled,
or being used by
a mine operator
in conjunction with mining activities.
Rather
it
is
the County
which
is controlling
the site;
the County
is the party directing
and overseeing placement of the mine refuse,
and the County
is
not
a mine operator.
Similarly,
the mine refuse itself
is not
“affected”.
The
word “land”
connotes surface area,
and not
earth
material underlying
the surface,
The mine refuse then,
the
nature
of which
is earth material, cannot be characterized
as
“affected land”,
Section 406.108 therefore does not apply to the
County’s construction work,
and Petitioner
i.s not
in need
of
variance relief from the sedimentation pond requirements of that
section,
ENVIRONMENTAL
IMPACT
The
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.
First, during construction the County intends to move
the
mine
refuse directly from the mine to placement in the
embankment.
No mine retuse 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.
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
r3ised,
two feet of soil will be placed over
the mine refuse and
the
area
will
be
fertilized,
seeded
and
mulched
to
promote
vegetative growth.
The top of
the embankment will
be roadway,
an
impervious
material.
—5—
Petitioner believes that variance relief
in this instance
would
impose
no alverse environmental impact
on
human
life,
olant
or animal
life,
In addition the Agency has concluded that
“Little
if
any of the contaminants
in the mine refuse will affect
ground
or
surface
water”
(Agency
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.
It
snould be noted that although the County states that
environmental impact will result only during
the construction
period of six months
or
less, Petitioner does request variance
relief
for
a five—year
period.
The County claims this added time
is necessary due
to two “timing” problems involved
in the
project.
First,
that the project
is to
be financed with County
funds
and therefore must
be cooniinated with the budgetary
constraints of the County.
Second,
that the mine refuse
currently produced by ~JhiteCounty Coal Company
is too wet for
proper placement and handling,
so the project will have to
be
held until
drier mine refuse
is available
(it
is anticipated that
the company will
be producing drier
refuse that will be usable).
H~RDS3I
P
Without variance relief from §406.106,
trie County would
be
required
to
comply
with
the
effluent
limitations
of
that
section,
Such
compliance
might
of
practical necessity require
Petitioner
to
install
a
sedimentation
pond
(although
the
County
is
not
legally
required
to
do
so
by
§436.108,
as
discussed
above)
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
oond
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.
The Board finds
that denial of the vartance relief requested
by
the
County
would
constitute
an
arbicrary
or
unreasonable
hardship to Petitioner,
and
that such hardship would
not be
justified
by
the
probable
environmental
impact
resulting
from
construction
of
the
embankmenc.
The
Board
will
therefore
grant
Petitioner
variance
relief
from
406.106,
subject
to
conditions.
The Board uses the word “probable”
in describing
the
—6—
environmental
impact
of
this
project
because
it
is
a
pilot
project,
the type of which has apparently
never
been attempted
before
in Illinois,
However,
the Board
is confident
in
its
reliance on assertions made
by the Agency and Petitioner that
only minimal adverse environmental
impact will occur.
Moreover,
the project will put to productive use
a material that had only
been refuse previously.
The
Board
further
finds
that, given
the circumstances of
this
case,
five years
is
an appropriate variance period.
The
construction phase of this project
is scheduled to last only six
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 sumi~er of
1986
or
the summer
of
1990,
This
Opinion
constitutes
the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The White County Board
is hereby denied variance from
35
Ill.
Adm.
Code
406,108.
The
White County Board
is hereby granted variance from
35
Ill,
Adm,
Code
406.106
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.
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:
—7—
Ron Barganz
Mine
qaute 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
arid conditions,
This
forty—five
(45) day period shal~ he held in abeyance
for
any period during which
this matter
is being
appealed,
The form of the certification shall
he
as follows:
CERTIFICATION
The White County Board has received and understands
the
Order
of
the Illinois Pollution Control Board
in PCB 85—174 and
hereby
accepts
said
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
IT
IS
SO
ORDER8D,
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
~-/
1986,
by
a
vote
of
_________________
/~
~2
/
Dorothy
M.
GuiIin,
Clerk
Illinois
Pollution
Control
Board