ILLINOIS

POLLUTION

CONTROL

BOARD

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

 PCB 72~328

PEABODY COAL COMPANY

 (WILL SCARLET

MINE),

Respondent

Deibert Haschemeyer, Assistant Attorney General for the EPA

Daniel Hail,

 Attorney for Peabody Coal Company

OPINION AND ORDER OF THE BOARD

 (by Mr~ Henss)

A Complaint against Respondent Peabody was filed by the

Environmental Protection Agency on August 7~1972 alleging

pollutional discharges from Peabody~sWill Scarlet Mine located

in Saline County, Illinois~

 The Complaint charges

 that,

 on seven

specific dates and numerous prior and subsequent dates, Peabody

operated the Will Scarlet Mine facilities

 in such manner as to

violate Sections 12(a),

(c)

and

Cd)

 of the Environmental Protection

Act, certain Sections of SWB—lO and SWB—l4 and Chapters III and IV

of the Pollution Control Board Rules and Regulations~.

 The streams

alleged

 to have been affected by the mine discharges were said to

be an unnamed creek,

 Sugar Creek and the South Fork of the Saline

River,

This action was consolidated for hearing with another enforce-

ment action involving mine waste discharges

 in southern Illinois from

property owned by Kenneth Jr~and Michael Martin, PCB 7l—3O8~ The

parties involved in the consolidated cases presented a proposal for

 settlement of the two prosecution cases0

 This first proposal was

rejected by the Board in our Opinion and Order dated May 24, l973~

We have now been presented with new Stipulations and Agreements

for Settlement for each of the two cases separately0

 This Opinion

and Order shall address the issues in the Peabody action separately

from those involving the Martins0

As part of

 the Stipulation,

 the Agency submitted data in the

form of group exhibits which indicates that pollutional discharges

from the Will Scarlet Mine area did occur on the dates alleged0

The

discharges consisted mainly of acid water,

 iron and suspended

—

157

solids,

 which would lower the pH of the receiving

 streams,

 cause

the water to be discolored and deposit objectionable material on

the stream bed0

 Peabody evidence appears

 to confirm

the

 occurrence

o f pollutional discharges but Peabody states that the discharges

were caused by:

a0

 Failure of routine pumping

 at pit #8

b.

 Failure of an earthen dam

c.

 Intermittent overflow from ~pit #11

d.

 Seepage through a levee,

and

e0

 Overflow of impoundedwater

 from pit #10

We are told that all of these problems have been remedied

 except for the problems involving pit #8.

 Sampling indicates that

the pumping program initiated to control the problems at pit #8 was

inadequate.

 As part of the proposed settlement, Peabody is

to

submit an abatement program acceptable to the Agency for the abate-

ment of pollutional discharges from the vicinity of

 pit #8.

The parties have agreed that the water quality

 of certain areas

of the Saline River does not meet applicable State Water Quality

Standards.

 It is further agreed that discharges from the active

portions of the Will Scarlet Mine have no significant impact on said

water quality of the Saline River, except for those discharges which

led to this enforcement action and those discharges originating from

a mine water treatment plant.

Under the proposal now submitted, Peabody will submit its

proposed abatement program for pit #8

 to the Agency within 30 days

after

our

 acceptance of this proposed settlement.

 If the Agency

issues an operating permit covering the abatement program,

 that

permit is

 to be deemed acceptance of the program by the Agency.

Peabody acknowledges that it is obligated

 to comply with the Act

and all applicable Rules and Regulations by other means,

 in the

event the approved abatement program does not bring

 Peabody into

compliance.

Peabody is

 to post a performance bond

in

 an amount equal to

the

 cost

 of the entire abatement program.

 While the

 proposed

settlement specifies no exact amount for the

 bond, Petitioner~s

attorney,

 Daniel

 Hall,

 said the cost of the

 abatement program for

pit

#11

 was running about

 $70,000

 per year and that detailed

estimates on the

 other portions of the abatement program

 would be

provided

 as soon as

 they are available

(R.

42,

 October

10,

 1973).

The proposed

 settlement calls for Peabody

to

 participate in

“other pollution abatement projects

 or projects

 presently under

discussion”

 in lieu of payment of a monetary penalty.

If,

 in the

Agency~s opinion, Peabody fails

 to satisfactorily participate in

such negotiations,

 the Agency shall

 provide written notice

 to the

158

board and Poabody of such failure

 With~n 33 day~

 7 or receIpt

~f ~

 f~i1areno

 ~ce,

 eabody a~re~sto pay

oc

 t~yof ?l5 00

t’~e Board

13

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~old

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projects

ia~ht

cnvolved

thIs

~de~

ff,

~ are

the

ossibi

L~ty that

~ch

ucos :iati~r~

~ou

7

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ricoh

thc

b~ect

t

the

isa

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5

~oc

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0e~ Ii

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~ho

~art

 ‘#dt

ecibil~1v

teqotiati~

 r~ore of te

 nor-

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th

~ur~

she

new

~roposed

 iet~je~e.

t.

e ftnd this cropo~e~setement

 ~o b~~

as

 ~r rcvonea~

vet

lle rirst

 iroosed

 settlement

mu

 ne an~ch cc car ac-epF

but

revertceles~ must state our

;rterpret

L10

 o~ ~ne

rade—llf

penalty provision

 to insure that there

 is no

misuiderstanding

any

ll musi be clearly unde~stoodthat tne $15,000 penalty

 is not

-~-o be tradea all for abatement work which Peabocty is legally ob1i~atcd

tc~certorm a

 any mine--snandoned or not.

 That mount

 of penalty is

sop~orcat~ for the violations whicn we find to tave occurred at the

~I

 Scarlet

 line,

 do ~uscend

 oayment of t3e $lS,uOO penalty in

allarn for

 ~n appropriate amunt

 of pollution abatement to be per-

formed

 cy Peabody

at

 ~non-owned

 moandoned ~ites~.

 dee EPA vs.

Kcenstra Cmncrete,

 POD 72-72’ EPA is, Zolfer Coal Company, PCB 72—258

ano DAD vs

 ADabody Coal

 POD 72-328,

 Interim Opinion of May 24, 1973).

The penalty will not be forgiven just because Peabody performs an

obligation

 ll is already bound

 to perform under

 the law

for

i~stanoe the abatement of Doll~1tioncoming from poirt sources owned

by Peabody,

The ronalty,

 if paid,

is

 for mollut_on dope at ~he Will Scarlet

hine alone.

 Tae suspension of penalty will be for Peabody~sabatement

of pollutior coming from non-owned abandoned mines for which Peabody

has no leqal ob1iqat~on,

 dhen an abatement oroject has been

selected by the parties we will require

 a report of the ownership

of the real estate involved to cc sure that there is no doubt re-

garding this provision.

 With this understanding the Board approves

the Stipulation

and

 Agreement filed by the Agency and Peabody in all

respects.

ORDER

We find that Peabody Coal

 Company

 has violated the Act

and

Regulations as alleged in the Complaint.

It

is

 ordered that:

1.

 Peabody Coal Company shall comply with its pollution

abatement program as described

in

 paragraph

3

of

the

Fact Stipulation and the

 exhibits incorporated

therein

 by reference0

 This

 abatement program includes:

11 —159

—4—

A.

 Continuing the

 treatment of intermittent

drainage from pit #11.

B.

 Performing normal inspection and adequate

 maintenance of the retaining dam near

Bulltown Bridge,

 the levee located near the

mine garage, and the pumps controlling the

water impounded

 in pit

 #10.

2.

 Within

30

 days from the date of this Order,

Respondent shall submit an abatement program

acceptable to the Agency for the discharge from

its mining area in or about the vicinity of pit

#8.

3.

 Respondent shall post a performance bond no later

than March

15,

1974

in

 a form acceptable to the

Agency in an amount equal to the cost of the abate-

ment program to insure completion of the pollution

abatement work described in Paragraphs

 1 and

2

of

this Order.

4.

 Respondent shall submit quarterly reports

 to the

Agency detailing the progress or lack of progress

with the Compliance Program and the reasons for any

lack of compliance.

5.

 Within the

9

 months following this Order, Respondent

shall participate

 in negotiations involving other

mine pollution abatement projects

 in Illinois in a

manner satisfactory

 to the Agency and the Board.

Upon written notice to the Pollution Control Board

and Respondent by the Aqepcy that Respondent has

 failed to satisfactorily participate in pollution

abatement at non-owned point sources, or upon such

finding by the Board, Respondent shall within

30

days pay a penalty of $15,000,

 Penilty payment

by certified check or money order shall be made to:

Fiscal Services Division, Illinois EPA,

2200

Churchill Road,

 Springfield,

 Illinois

 62706.

 Pay-

ment of the penalty shall apply solely to violations

in this proceedings and shall not be attributable

to

any failure

 in negotiations involving mine discharge

from property for which Peabody Coal

 is legally

responsible.

6.

 Within

 30 days after reaching agreement on a pollution

abatement project the parties shall notify the Board

11

—

160

—5—

regarding the details of the project, including

ownership of the real estate and pollution

sources

 involved and the identity

 of any person

or company who created

 the pollution source or

may be liable for allowing the pollution

 to occur.

If no agreement

 is reached regarding

 a pollution

abatement project within

 9 months,

 the parties

shall advise the Board of that fact and the

 $15,000 penalty shall become due and payable.

Mr. Marder and Mr. Seaman dissent.

I,

 Christan L.

 Moffett, Clerk of the

Illinois

Pollution

Control

Board,

 lereby ce~tiry the above Ooin~on

and

 Order was adopted this

_____day

1974

vote