ILLINOIS POLLUTION CONTROL

BOARD

January

31,

1974

ENVIRONMENTAL

PROTECTION

AGENCY,

Complainant,

v~

)

PCB 71~3O8

KENNETH

MARTIN,

JR~ and

MICHAEL

MARTIN,

Respondents.

Delbert Haschemeyer and Larry Eaton, Assistant Attorneys General

for the EPA

Ch.arles W~Philli.ps, Attorney

for Respondents

OPINION AND ORDER OF THE BOARD

(by Mr.

Henss)

The Environmental Protection Agency filed a Complaint

against Kenneth and Miciael Martin

•on October 6,

1971 alleginq

that Respondents,

as owners of an abandoned coal mine, had caused

or

allowed the discharge of contaminants into Harco Branch,

Brushy Creek,

itankston Creek and the middle fork of the Saline

River.

These discharges and the resulting water pollution were..

allegec

ro be

r~o!~tionsof Sections

l2’a)

and

(d)

of the Environ~

mental Protection Act and Rules 1~03(a)

,

(c)

and

(a)

,

l~05(b) and

(d)

,

and

1.07

of

SWFJmb4~ The min~ain question is located at

Harco

in

Saline

County and is known as Peabody Number 47~

Nine days after

the

filing

of

this

Complaint

against

the

Martins,

the Agency

filed

a

Motion

for

StayS

The

Martin

case

was

not

activated

again

until

November

29,

1972

when

it

was

consolidated

with

an

enforcement

action

which

had

been

brought

against

Peabody

Coal.

Company

(POE

72~328).

The

enforcement

action

mqainst

Peabody

wasf

or

pollution

opcurring

at

the

Will

Scarlet

Mine

located

in

Saline

and Williamson Counties~

The

first

proposal

for

settlement

of

these

two

prosecution

cases

was

rejected

by

:.~he~Board

in

our

Opinion

and

Order

dated

May

24,

1977

We

have

now

been

presented

with

another

St.

pulation

ace

‘~

~me’~t

for

Sembieme

t

oi

Lte

~

case

aid

will

address

the

issuee

in

the

Martin

actico

separately

from

those

invclving

tCe

W~li ~ca~cot

M~ne

---

The settlement proposal and the public hearing on August 27,

1973 brought forth new information regarding ownership and control

of

the abandoned mine located at Harco,

The 228 acres of land

involved in this

case

was acquired by Kenneth Martin,

Sr.

from

Peabody Coal Company by quit claim deed dated July

28,

1959.

How~

ever, Peabody retained ownership of the coal and other minerals

“on or underlying” the premises and the right to remove these

minerals.

Peabody conveyed the property “excepting all coal,

oil,

gas and other minerals on or underlying all of said premises,

together with the right to drill for, mine,

produce and remove

the same without liability for injury or damage of any kind to

said premises.

..“

(Attachment II of the Stipulation)

.

Peabody

is

now negotiating to reclaim about 130 acres of this abandoned mine.

All active mining operations at Peabody No.

47 were terminated

prior to July 2~,1959.

The pollution is caused by

a coal slurry

field and a gob pile which were located on the surface of the

land when it was acquired by the Martins.

These pollution sources

were adcumulated on the surface of the land during the Peabody

mining operation.

The Martins have not performed any mining operation

or caused any mining operations nor have they deposited coal

fines

on the land,

nor caused the accumulation of any of the pollution

sources which have resulted in air and water pollution in the area.

The Martins state that they have not attempted to abate these

pollution sources because they are financially unable to do

so.

The Environmental Protection Agency has entered into this

settlement agreement with the Martins which requires very little,

if

any,

action on their part to abate these large pollution sources.

No monetary

penalty

is

to be

assessed

against the Martins and the

Martins in turn agree

to allow

Peabody to come on to the property

to abate the pollutional discharge if Peabody desires to do so.

The Martins also are willing to forego any profits from removal of

the coal slurry.

The Martins have entered into

a contract with

a

coal reclaiming company for the removal of this coal slurry but

will make the profits available to Peabody in order to help pay for

Peabody~sabatement program.

We believe that the settlement

is

fair to the Martins.

The

Martins are not responsible for creating the gob pile or the coal

slurry field and are without the financial ahility to abate the

pollution which is

on

property they now own.

The Martins have

agreed that they do have

a responsibility

“for allowing”

the

pollution but that responsibility

is certainly very technical

and we would not impose

a penalty on the Martins.

We agree that

the Martins could not be asked to

do more

t7an

cooperate

with the

reclamation program, allowing access to the property and furnishing

such reports as may be necessary regarding the project.

We reject the settlement since it does not assure the abatement..

of the pollution which occurs at Peabody

No.

47.

We believe that it

11

—

66

---

—3—

will not be possible to require

the abatement of this

pollution

unless Peabody is made a party.

Peabody caused the situation

in

the first place and still owns

all minerals on the property.

Our interpretat~onof

the

deed is that Peabody retains ownership

of the coal ~slurry field and the right to remove it.

Depending

upon

the’ content of the gob pile,

there

is

the strong possibility

that Peabody also owns the gob pile and the

right

to remove it.

Since these are the pollution sources, we think

it

obvious that

this case should not be concluded in the absence of Peabody.

A

settlement based upon the nominal and technical liability of

the

Martins will accomplish nothing.

This is the second settlement proposal submitted

to

us in

this matter.

We would like to see a conclusion

to this case but

a complete disposition cannot

be

had unless

all

owners are in-

cluded

in the

proceeding.

We will allow the Agency

4fl

days

in

which to amend its Complaint by adding additional Respondents.

If the Complaint has been amended within that period of

time

so

that all owners are before

us

the case will proceed

to

hearing.

If

the

Agency has failed to make the necessary amendment within

the

ORDER

The current settlement document is rejected.

The Environmental

Protection Agency is granted 4~days from the date

of this

Order

within which to file amendments to

the Complaint or

an Amended

Complaint adding a respondent or additional respondents.

I, Christan L. Moffett,

Clerk of

the Illinois Pollution Control Board,

hereby certify the

above

Opinion and Ord~rwas adopted this ~

day

of

,

1974 by a vote of ~

toO.

11 —67