ILLINOIS POLLUTION CONTROL 

BOARD

January 

16, 1973

ENVIRONMENTAL PROTECTION AGENCY)

)

#72—343

MEADOWLARK FARMS, INC.     

)

DELBERT HARSCHNEYER, ON BEHALF OF ENVIRONMENTAL PROTECTION AGENCY

JAMES B. BLEYER, MARION, ON BEHALF OF RESPONDENT

JON M. CASSADY, INDIANAPOLIS, INDIANA 

CO-COUNSEL FOR RESPONDENT

OPINION AND ORDER OF THE BOARD (BY SAMUEL T. LAWTON, JR.):

Complaint was filed against Respondent alleging that it caused,

threatened or allowed the discharge of contaminants, 

including

but

not limited to, acid water, coal fines and iron on various dates

including, but

not limited to, December 15, 1971, January 7, 1972,

February

15,

1972, May 19, 1972 and June 16, 1972 so as to cause

or tend to cause water

pollution, 

in violation of Sec. 12(a) of the

Environmental Protection Act. (Ill. Rev. Stat. 1971, Ch. 111—1/2,

Sec. 1012 (a)).

The complaint alleges that the substances discharged

will settle to form putrescent or otherwise

objectionable sludge

deposits which may be detrimental to bottom biota, in violation of

Sec. 1.03(a) of SWB-14, effective pursuant to Sec. 49(c) of the

Act. Respondent is further alleged to have discharged materials

in such a degree as to create a nuisance in violation of Rule 103(c);

caused or allowed materials attributable

to said discharges in concen-

trations or combinations which are toxic or harmful to human, animal,

plant or aquatic life, in violation of Rule 1.03 (d) of SWB-l4; caused

or allowed said discharges to cause the pH to be below 6.0 in violation

of Rule 1.05(b) of SWB—l4; caused or allowed unnatural sludge or bottom

deposits, unnatural color or turbidity, in matter and. concentrations

of a nature toxic or harmful to human, plant or aquatic life, or other

than natural origins so as to causeafishkill in violation of Rules

203(a) and 402 of the Water Pollution Regulations; and caused or

allowed the concentration of iron, manganese, sulphate and total

dissolved solids to exceed the level set forth in Rule 203(f) of

the Water Pollution Regulations, all in violation of Rules

2O3~(f)’ and 402 of the Water Pollution Regulations.

Respondent (Meadowlark) is a corporation registered in Indiana

and doing business in the State of Illinois (Stipulation R.5).

Respondent is owner Cf the surface rights of the property alleged

to be the source of violation. It is not clear from the record

—

537

w:iot

ICF

tho mi 

ncr~ti rt~j1its are owned i~v Mine

Equipment Leasing

aria We 1 tar and 

Su~jna Uris

al

have 

been transferred

to

at her riatt:

1’    

(boriuJ a nant.

‘s hxliibits 1 and 2) 

Respondent

i.s a  

c.1v—owriad

suosidiar\’ of 

American

Metal 

Climax, Inc.,

and

haz~ aeon inca 

C~c~obar

31, 1969. 

American Metal Climax, Inc.

a division

~nawn as Amax Coal Comoany (Amax) which operates

The :unctlon

of leadowlark 

is to hold and manage

Luid

rvas of .rts narent comuanv, both before and after Amax

has cc’rir’Icted mu ninq oricratlons

(

Ncsuondent

Exhibit C)

Accar dine

to

kesnondent,

~1eadowlark is primarily in the

business 

of farming. It

either operates the farms itself 

if

the land is not sufficiently

large 

to constitute

an

economical

farm unit.,

it

atternuts to lease the land

to local farmers. The

land in euestion was previously owned by the

Peabody 

Coal Company

which engaged

in

mining operations on

this parcel (Respondent ~s

exhibit 

The size of this parcel

is 160.76 

acres.

Meadowlark

acquired its interest in the property (commonly

known as 

Peabody

43) on November

7,

1967. Because Meadowlark

considered 

the

parcel to constitute less than an economical farming unit, it

leased out the land to a local farmer, James Teal, who operated a

hog and cattle farm on the premises during 1968 and 1969. The lease

was terminated in 1970 and the premises have remained idle since that

time,

Neither American Metal Climax, Inc. nor any of its subsidiaries

ownS the mineral rights of the parcel at the present time. However,

Amax

has an operating mine located 

within

several miles of the

property in the seam that runs through this parcel. Mining of

this site is anticipated in the future. (Respondent’s Exhibit C).

Peabody Coal Company operated Peabody 43 for approximately

ten years, beginning in 1944 (R. 40 and 46) 

That mining created

the gob that is still in evidence today (R. 44) 

Neither American

Metal Climax, Inc. nor any of its subsidiaries including Respondent

has owned the coal seam or operated the mine at the subject property.

Sufficient evidence was presented to establish that the pollu-~

tion had its source on property in question. There is a receiving

waterway on the property that drains into Brushy Creek. On

June 16, 1972, a fislikill was recorded in Brushy Creek which had

its uppermost limits at the ditch (R. 96) 

The cause of the fishkill

is the water which was quite acid having a pH between three and four

(5. 97). Dissolved oxygen was 6 mg/liter and sufficient to support

fish life. (P. 98) 

Aquatic life, including fish, were in evidence

upstream of the point of discharge into Brushy Creek. Dead fish

were found in an area along 7~500 feet downstream of the point of

discharge (P. 94). Examination of the Brushy Creek showed that the

stream bed was mainly fine sand and gravel, but the bed contained

coal fines and a reddish precipitate (P. 125), Respondent admits

that the fishkill 

was

caused by acid mine drainage from Peabody 43

(Peso. Brief). The value of the fish was placed at $141.66.

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535

The opinion of an expert was that game fish could survive in

the

waterway (R. 133). In previous years, bass, crappie and bluegill

fish

were present in the stream (P. 37). During the dry flow periods,

reddish precipitate di~sbeen more in evidence (P. 36) 

Fish apparently

live in the pools of the stream during that period (P. 36—~t8). However,

the fish in the tributary are usually observed dying during this period

(P.37). Attempts to use this water for agricultural purposes have re-

sulted in the destruction of the crop (P.38).

The Respondent argued that

the

receiving waterway in question

was, by definition,

an intermittent

stream and thus unable to support

fish life. Intermittent stream is defined by SWB-14, Rule 1.02 as one

that “flows only in direct response to rainfall.” Based on the evidence

we conclude that the stream does have reduced or no flow times during

the dry periods (P. 35) 

However, as stated above, the tributary flows

most of the year, does sustain aquatic life, and thus is controlled by

Rule 1.05.

Respondent’s parent corporation has taken action to prevent acid

discharges on other property it owned. Respondent states that it first

was made aware of the “pollutional discharge problem at Peabody 43 by

Illinois Environmental Protection Agency through a letter addressed to

Meaclowlark Farms, Inc. dated June 27, l972...”(Respondent’s Exhibit C).

At that point, Respondent began a study of the problem including

legal aspects, abatement methods and costs, the effect of pollutional

discharge on Brushy Creek watershed and the history of Peabody 43

acid mine drainage problem. (Respondent’s Exhibit C)

Respondent initiated an abatement program on October 1, 1972. It

consisted of “shaping and compacting the refuse and covering it with fror

three to four feet of borrow material”. The area would be subsequently

re-vegetated and the run-off would be diverted around the area. The

cost of the project is estimated at $40,000 (Respondent’s Exhibit C).

Respondent asserts that it does not have ownership and control

over the property “from which the discharge originates”. Resnondent’s

semantical argument finds its source in the division of ownership rights

to the property in question. We believe that the function of holding

and managing the surface rights of this property is the same as the

ability to control the surface. The case Respondent cites, Smoot v.

Consolidation Coal Company of St. Louis, 114 Ill. App. 514 (1904) in

support of its contention that the gob pile belongs exclusively to the

holder of the mineral estate is not persuasive to absolve it of liabili-

ty based on control and dominion.

We are not so much concerned with the refinements of ownership

of the gob pile as much as with the capability of controlling its

pollutional discharge. Respondent cannot be selective about what

aspects of the surface right are under its control. The burdens must

be accepted with the benefits. Lacking a strong affirmative showing

—3 

—

539

of legal 

inability to control the gob pile emissions, Respondent

is held liable for control of the pollution source. Respondent has

exercised control over the source as described above and Respondent

has not shown how this control would be legal if the mining waste was

not Respondent’s property, or subject to its control.

We find it hard to understand why Respondent was unaware of the

problem during the five years in which it was the owner of the property.

By Respondent’s admissions alone, the gob pile occupied 18 acres of

the property. (Respondent’s Exhibit C). Even a circumspect survey

of the property would have disclosed its existence. Respondent’s parent

corporation has had great familiarity with similar situations and should

have been aware of the implications.

We find that Respondent has violated Section 12(a) of the Act

by causing and allowing the discharge of contaminants so as to cause

water pollution of Brushy Creek and its tributaries. Respondent also

has violated the SWB-l4 regulations as charged in the complaint. Res-

pondent has allowed the discharge of toxic material in 

concentrations

toxic or harmful to human, plant or aquatic life so as to cause a fish-

kill, in violation of Rules 203(a) and Rule 402 of the Water Pollution

Regulations. We order Respondent to cease and desist the discharge of

contaminants into tributaries of Brushy Creek, and to submit a plan

for the abatement of mine waste discharges to the Agency and the Board

within 20 days of the date of this Order. Respondent shall post a bond

in the amount of $40,000 to insure the completion of the project to

abate run—off from the refuse located on Respondent’s property, within

120 days of the date of this order. Respondent is assessed a penalty

in the amount of $141.66 for the violation of the Act and the Water

Pollution Regulations. A more extensive penalty might be appropriate

but we are more concerned with prospective compliance and believe any

monies could be better spent to this end.

IT IS THE ORDER of the Pollution Control Board:

1. Respondent shall cease and desist the pollution of Brushy

Creek and its tributaries, so as to cause water pollution,

as defined in the Environmental Protection Act and shall

cease the discharge of acid and other mining wastes, in

violation of Sections 12(a) and the regulations promulgated

thereunder;

2. Respondent shall, within 10 days of the entry of this Order,

pay to the State of Illinois for deposit in the Fish and Game

Fund in the State Treasury, the sum of $141.66, representing

the reasonable value of the estimated fish kill on June 16,

1972. Penalty payment by certified check or money order payable

to the State of Illinois shall be made to: Fiscal Services

Division, Environmental Protection Agency, 2200 Churchill

Drive, Springfield, Illinois 62706.

—4—

6— 

540

Respondent shall submit to the Environmental Protection

Agency and the Board, a program for the abatement of mine

waste discharges from its property, particularly its gob

pile, within 30 days from the date of this order and

shall abate such conditions pursuant to such plan as sub-

mitted, within 120 days from the date of this order.

4. Respondent shall post with the Environmental Protection

Agency, within 35 days from the date of this order, a bond

or other security in the amount of $40,000 in a form satis-

factory to the Agency, which shall guarantee the installa-

tion and operation of the abatement procedures pursuant to

program required to be submitted by paragraph 3 of this

order. The bond shall be mailed to: Fiscal Services

Division, Environmental Protection Agency, 2200 Churchill

Drive, Springfield, Illinois 62706.

1, Christan Moffett, Clerk of the Illinois Pollution Control Board,

certify that the above Opinion and Order was adopted on the 

day of January, A. D. 1973, by a vote of 

to

~‘

,.~

—5-.

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