ILLINOIS POLLUTION CONTROL BOARD

July

26,

1971

ENVIRONMENTAL

PROTECTION

AGENCY

#70~lO

TRUAX-TRAER

COAL

COMPANY

AND

CONSOLIDATION

COAL

 COMPANY

THOMAS McMAHON,

ATTORNEY

FOR

ENVIRONMENTAL

PROTECTION

AGENCY

BILL

GREEN,

CARBONDALE,

ILLINOIS,

ATTORNEY

FOR

RESPONDENTS

OPINION

OFTHE BOARD

(BY

MP~

LAWTON):

On June

9,

 1971,

 the Board entered an Opinion and Order setting

forth that:

“On February

17,

 1971,

 an Opinion and Consent Order was entered

by this Board as

 a consequence of an enforcement action brought

against Truax-Treer Coal Company and Consolidation Coal Company,

whici~ihad alleged

 that during

 the period from May

25,

 1970 through

June

3,

 1970,

 Respondents had polluted the Little Muddy River

and

the Big Muddy River watersheds by discharging polluted water from

its coal mines,

 in violation of Sanitary Water Board Act and Regula~

tion SWE 14 of the Sanitary Water Board Rule 1.03(d), which regulation

 remained in force

 and effect pursuant to Sections

49

and

 50 of the

Environmental Protection Act,

“As

 a result of the Consent Order,

 a penalty in the amount of

$3,750.00 was assessed against Consolidation Coal Company and Truax~

Traer Coal Company for the fishkill resulting from the pollutional

discharge

 of the Burning Star Slope Mine owned by Respondents, which

penalty has been paid to the Illinois Department of Conservation.

The Order

 also contained the following provisions:

“~(2)

 This proceeding

 shall remain open for consideration

of a possible order relative

to

 a program to minimize

the likelihood

 of any recurrence

 of pollutional dis~

charge from the Burning Star Slope Mine.

 Any variance

petition filed by Respondent shall be consolidated

in

this cause,

 The Pollution Control Board retains

jurisdiction

 of this proceeding for the holding of

such further hearings and

 for the entry

 of such cease

and desist and other order as shall be appropriate

to

assure compliance with

 all relevant statutory provi-

sions

 and regulations.

2

—

165

(3)

 Respondents by this Consent Order are not fore-

closed from challenging the propriety of any

future order entered by the Pollution Control board.

(4)

 The parties hereto shall submit to the Board

within thirty days from the date hereof, their

proposals for abatement and control of any

pollutional discharges from the Burning Star

Slope Mine.

 The Board will schedule such

further hearings upon notice to the parties

as

shall be appropriate in the premises.~”

The Opinion further noted

 that:

“Notwithstanding the express directive to both parties set forth in

the above order, nothing has been received to date from the Environmen-

tal Protection Agency relative to a proposal for abatement and control

of pollutional discharges from the Burning Star Slope Mine.

On

March 17,

 1971,

 this Board received a document captioned ~Petition

for Variances, filed by consolidation Coal Company, reciting the history

ol ownership of the property, the details of which are not necessary

for this decision and order.” After setting forth that the operation

had been abandoned before the enactment of the Environmental Protection

Act and the acquisition of title by Respondent, Consolidation Coal Com-

pany,

 of which Truax—Traer Coal Company

 is an operating division,

the

alleged Petition for Variance requests the entry of an Order, which,

in effect, would absolve Respondent from any responsibility with regard

to the operation of its

properties,

 on the grounds that the alleged

violations resulted from circumstances and

conditions’pre—dating

Respondent~sacquisition of title and before the

enactment of the

Environmental Protection Act, and further asks that the Environmental

Protection Act be held not to

apply

to mining operations conducted by

Respondent~spredecessor in title.

We held that the document filed by Consolidation Coal Company

was not a variance petition

in

any sense of the word, but rather

sought

a declaratory judgment that

the Act does not apply to Petitioner~s

operation.

 Accordingly, we entered the following Order:

“1.

 That the petition for variance, be and the same is

hereby dismissed for the reasons above set forth,

2.

 That the Environmental Protection Agency is directed

to file, within 20 days from the date hereof,

 a full

and detailed report of its proposals to achieve

abatement of the pollutional discharges above-described,

or, in the alternative, an amended enforcement action

2— 186

providing for the entry of a cease and desist

 order

against Respondents, pursuant to either of which this

Board will conduct further hearings as appropriate.”

On June

25,

 1971, the Board received a report from the Environ-

mental Protection Agency reciting,

 in substance, the foregoing events.

The report then makes the following statement:

“Apparently,

 the Board had anticipated a full

and

detailed

abatement proposal from the Agency

 as a result of the Original

Board Order, regai~dlessof the nature of the companies response

to that Order.

 The Agency’s understanding of the Original

Board Order, however, was that the companies would file a

valid Variance Petition, which would by necessity include

a proposed program of the type which the Board now Orders the

Agency to propose.”

The Agency’s understanding of the Boa~d~sdecision set forth

in the first sentence quoted

 is correct and it is difficult to

understand

at

this late date

why that

was not pursued,

 The original

complaint filed by

 the Agency sought

the

entry

of

 a cease and desist

order against continued pollutional discharge in the Little Muddy

and Big Muddy watershed.

 Testimony taken at the time of the settlement

agreement suggested that while the immediate source of the pollutional

discharge resulting in the fishkill had been abated,

 an ongoing program

of pollution control was necessary for the area under consideration

and

 the Agency would anticipate

 a definitive program from the company

in this respect.

 Lacking this,

 it was anticipated that the Agency

would take

 the initiative to force the achievement of this program.

The Agency,

 in its report,

 has now submitted a proposal which

it states contains

 “the steps necessary to abate

 a particular pollution

problem” and submits

 the following proposal to. the Board

 “to achieve

the abatement of the subject pollutional discharges:

“1.

 The companies shall cease

 and desist all pollutional

discharges

 from the Burning Star Mine,

2.

 The companies shall locate and identify all possible

points of discharge.

3.

 The companies shall conduct surveillance

 of all identified

points of discharge as frequently

 as may be necessary to

insure that no discharge causes a violation of the Environ-

mental Protection Act or Regulations effective thereunder.

4.

 The companies

 shall report to the Agency within

 30 days

the

location

all

identified

possible

points

 of dis-

charge.

—

167

5.

 The companies will report to the Agency the

 time, lo-

cation,

 amount,

 and duration of any discharge which

occurs,

 regardless

 of whether or not

 is deemed to

cause

 a violation of the Environmental Protection Act

 or Regulations effective thereunder,

6.

 The companies shall submit

 a quarterly report to the

Environmental Protection Agency which details its

surveillance

 activities,

 and the results thereof,”

The Agency’s proposal is comparable to one previously submitted

by the Company to the Sanitary Water Board,

 An Order of the character

proposed by the Agency could

 only be entered after

 a full hearing

on the original complaint or modified complaint or upon

 a petition

for variation filed by

 the companies.

 While the foregoing proposal

may be meritorious,

 it cannot be instigated on the Board’s initiative

alone.

 The Agency~sreport adds the following:

“The Agency recommends

 that the Board terminate these

proceedings

 as soon as possible.

 The Agency, pursuant to its

normal surveillance duties,

 is conducting periodic inspections

of tne mining property in question.

 If any such inspection

discloses that

 a violation may exist,

 the Agency will bring

an appropriate enforcement proceeding.

 The continued pendency

of

 the existing proceedings, particularly

 in light of the fact

that the operative events occurred prior to July

1,

 1970,

will only serve to complicate

 any subsequent enforcement

proceeding.

While the Board is reluctant

 to dismiss this proceeding,

 there

does not appear to be any suitable alternative available.

 The Com-

panies have not filed

 for variance

 and the Agency does

 not appear

disposed to pursue

 its enforcement action.

 Accordingly,

 we dismiss

proceeding #70—10, being

 the original enforcement action.

 Such

dismissal

 is without prejudice to either party

 to pursue such

further and additional action as shall be appropriate.

The

variance petition,

 #71—54,

 has been previously dismissed by our

June

9,

 1971 order,

This Opinion constitutes the Board’s~findings of fact

and conclusions of law.

2

—

168

ORDER

The complaint filed in case entitled

 “Environmental

Protection Agency

 v. Truax-Traer Coal Company and Consolidation

Coal Company”,

 #70-10,

 be and

 the same is hereby dismissed

without prejudice.

I,

 Regina E. Ryan, Clerk of the Board, certify that th~board has

approved the above Opinion and Order this £~~day~