ILLINOIS POLLUTION CONTROL BOARD
February 27,
1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
PCB 72—63
TRUAX-TRAER COAL COMPANY, a division
of CONSOLIDATION COAL COMPANY,
Respondent.
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
PCB 72—153
CONSOLIDATION COAL COMPANY,
Respondent.
Frederick C.
Hopper, Assistant Attorney General for the EPA
William
F.
Green, Attorney for Respondents
OPINION AND ORDER OF THE BOARD
(by Mr. Henss)
Case No. 72—63 is an enforcement action against Truax—Traer
Coal Company,
a division of Consolidation Coal Company, alleging
that Respondent had caused air pollution by allowing the emission
of
coal
dust
and
other
particulate
matter
in
violation
of
Section
9(a), Environmental Protection Act.
It is alleged that Truax—
Traer Coal Company owns,
controls,”or
is responsible for” a 57
acre abandoned slurry field consisting mainly of coal fines located
south of Pinckneyville in Perry County,
Illinois.
Case No.
72-153 is an enforcement action against Consolidation
Coal Company and involves the same property.
The EPA alleges that
Respondent owns and controls the discontinued strip mine operation
of some 600 acres
(the Pyramid Mine).
The EPA charges that Re-
spondent deposited contaminants
in the form of
a gob pile and other
refuse on the land so as to create a water pollution hazard,
allowed the discharge of contaminants so as to cause water pollution,
bottom deposits of coal
fines in Chicken Creek, and has created a
nuisance from the color and odor of the discharges
in Chicken Creek.
7
—
131
—2—
Respondents filed various Notions attacking the consti-
tutionality of the Environmental Protection Act and of the
proceeding generally.
Respondent claimed that the Statute is
unconstitutional under the doctrine of separation of powers
(Article II, Section 1, Illinois Constitution), constitutes an
unlawful delegation of legislative power to an administrative
agency
(Article IV, Section 1, Illinois Constitution),
and
is
an unlawful attempt to confer judicial powers on an adminis-
trativeagency
(Article IV, Sections 1 and 9, Illinois Constitution).
We have previously considered these constitutional questions in
EPA vs. Granite City Steel,
PCB
70-34; EPA vs. Modern Plating
Company,
PCB
70-38 and PCB 71-6 and will adhere to
our
earlier
decisions.
These Motions to Dismiss are denied.
Respondent claims that evidence submitted at the hearing
was either inadmissable or insufficient to prove the allegations
of the Complaint.
We do not rule upon all of these objections
for the reason that a Stipulation for Settlement was submitted,
and
we will consider the testimony only as it relates to that
Stipulation.
We will not consider the evidence for any other
purpose since the EPA had failed to comply with our discovery
rules.
Some 3 1/2 months prior to hearing, Respondent propounded
interrogatories to the Complainant requesting the names of
witnesses who
had
observed emissions of particulate matter,
who
had collected samples and run tests
and
therefore had knowledge
of the quantity and type of emissions and the names of those
witnesses who had suffered
injury
or
unreasonable
interference
with their property as a result of emissions from the Respondent’s
property.
Respondent also asked the EPA to state whether it had
photographs, reports or tests relating to the alleged air pollution.
Our
Rule 313 states that “the hearing officer shall order the
following discovery upon written request of any party:
list of
witnesses who
may
be called at the hearing”.
Respondent’s counsel
objected strenuously to proceeding without the list of witnesses
but upon the date of hearing did agree to waive the objection for
the
purpose
of
permitting
testimony
in
support
of
the
settlement
agreement.
In
view
of
that
Stipulation
we
accept
the
record
for
settlement
purnoses
•
At
the
same
time
we
take
this
opportunity
to emphasize that
our
discovery
rules
shall
be
enforced.
In
a
contested hearing, witnesses who are not disclosed pursuant to
properly
submitted
interrogatories
shall
not
be
permitted
to
testify.
Oral
disclosure
of
witnesses
on
the
date
of
hearing
is
no
guarantee
against
surprise
and
is
not
compliance
with
the
discovery
rule.
The
material
submitted
in
support
of
the
settlement
stipulation
indicates
that
the
Truax-Traer
Coal
Company no longer exists.
This
Corporation
at
one
time
actively
mined
the
area
in
questhn
but
discontinued
active
mining
operations
in
1959
and
dismantled
its
plant
in
1960.
Consolidation Coal Company purchased all of the
7—132
—3—
stock of Truax-Traer Coal Company
in 1962.
Subsequently,
Truax-Traer was dissolved.
Consolidation Coal Company has
ncver mined coal from the land in question and has no present
or future plans to mine
coal from it,
Consolidation Coal
Comnany continues to deny that it has any liability under the
Environmental Protection Act but nevertheless, has entered
into
an agreement with the Environmental Protection Agency for
the
purpose
of
cleaning
up
the
property.
During
bEe
time
the
property
was being
actively
mined,
coal
was
mechanically
washed
of
dirt,
coal
fines
and
other
materials~
and
the
waste
products
were
deposited
on
the
land
in
the
form
of
slurry
piles.
The
slurry
field,
at
the
present
time,
contains
an
estimated one million tons of deposited
material.
This
material
is blown about during a strong wind
and is deposited upon the property of persons living
in
the area.
~1aterial
from
the slurry pile has covered porches and automobiles,
has seeped through windows into homes
arid,
it is claimed, has
pitted
aluminum
material.
An EPA employee visited the mine and collected water samples
which were delivered to the State laboratory
in Carbondale
for analysis.
During the visit he observed seepage coming from
the dam around the slurry pond and followed the seepage
to its
antrance into Chicken Creek.
The flow in the ditch was slightly
turbid and had a slight amber discoloration.
Coal fines,
coal
refuse and a rusty orange deposit were observed in the stream
bed--a violation of SWB-l4 Rule 1.03(a).
The stream bed is
covered with approximately 2 to
3
feet of coal refuse and coal
fines
for approximately 1/4 mile downstream.
Stipulated photo-’
grahs show these conditions of contamination quite clearly.
The
samples collected
by
the EPA investigator revealed that the
discharge to Chicken Creek had a pH of 4.8
in violation of
SWB-l4 Rule
1.05(b)
.
The Standard is
6 to
9
pH.
The
evidence
clearly
indicates
that
property
now
owned
by
Respondent Consolidation Coal Company is
a source of both air
pollution and water pollution in the area.
Respondent claims
that
it
did
not cause the gob pile or slurry field to be de-
posited upon the land and has not ~‘a1lowed”the emissions from
these sources.
Nevertheless, Respondent is willing to enter into
a Stipulation for the abatement of the pollution.
The Stipulation
includes
a. short term proposal to immediately eliminate the
pollution hazard and a long term proposal to develop
a permanent
solution for the disposition of
this gob pile and slurry field.
7
—
133
—4—
Stage
1 of
the settlement provides for:
1.
Continued maintenance of a previously constructed
$49,000 levee located between the open strip pit
and public waters to minimize runoff and seepage.
2.
The pumping of water from the strip pit to the
slurry area
to completely saturate the slurry
area
and
thereby
prevent
the
blowing
of
dust.
(Cost
of
pump,
pipe
and
fittings
$8900.)
3.
A system for patroling the levees, monitoring
the air and water, analyzing seepage, and reporting
findings
to the EPA at agreed periods.
4.
Installation
of
a snow fence
(cost $1,749)
to
break
up
the
air
flow
and
reduce
the
blowing
of
particulate matter.
All of Stage 1 was to be completed by October
31, 1972 and
presumably
is now in effect.
Respondent has agreed not to dis-
continue the maintenance of the temporary program without obtaining
the consent of the EPA.
Stage
2 of
the proposed settlement provides for use of the
~roperty
in
a training program and is intended
to result eventually
in the complete reclamation of the site.
The plan is to convey the
land to another corporation, the Southern Illinois Land and Human
Resource Development Corporation,
to develop a program of training
minority and nonskilled people from Southern
Illinois
in
skills
associated with the reclaiming and developing of waste lands
in
that
part
of
the
State.
Southern
proposes
to
reclaim
the
coal
fines and the slurry pile for use in Southern Illinois and possibly
other
areas
as
a
partial
means
of
off—setting
operation
costs.
Many
questions
may
be
raised
regarding
this
pilot
project.
Nothing
has
been
submitted
to
us
at
this point
to indicate whether
the project is
feasible
from
a
financial
or
ecological
standpoint.
The
quality
of
the
coal
fines
in
question
may
not
he
high
enough
to market.
In the record there are indications that the heat
content of this slurry material lies somewhere between 9,000
and
9,800 BTU/lbs. which is 2,000—3,000 BTU/lhs. less than that
generally
used
by
power
plants.
The
material,
therefore,
may
have
a
low
heat
content
and
at
the
same
time,
it
may
have
a
high
sulfur
and ash content.
The demand for material of this
type is presently
very
low.
More
data
is
needed
to
indicate
whether
the
use
of
this
fuel would result in
a violation of our Regulations.
7
—
134
—5—
The most recent information does not show any firm source
of funding for Southern.
The Office of Economic Opportunity has
apparently
rejected
the
Corporation’s application for funds.
With
an
uncertain
market
and
without
OEO
financial
backing
the
project
may
be
in
trouble
from
the
beginning.
It
is
far
from
clear
to us that the parties have arrived at a permanent solution
for
the
use
of
this
land.
However, we believe the parties should proceed with their
planning.
We
cannot
anticipate
what
final
plans
may
be
developed
and
will
not
at
this
point
indicate
our
approval
or
disapproval.
We
will
retain
jurisdiction
in
this
matter and reserve the power
to review and pass upon the plan for final reclamation and the
contracts,
conveyances
and
other
documents
proposed
to
transfer
the property to the not-for--profit organization and to carry out
the permanent program.
Stage one of the plan will put an end to
the air and water pollution and provide the parties with the time
so
that
they
may
thoroughly
explore
a
more
permanent
program.
We
approve
the
temporary
abatement
program
and
we
hold
our
final
decision
in abeyance while the parties proceed to make further
plans for the development of the permanent program.
There will
he
no
financial
penalty.
We
see
no
need
to
press for financial
penalties under these circumstances and are very eager to pro-
vide that atmosphere which will lead to
a voluntary cleaning up
of the mine waste areas of
Illinois.
ORDER
It
is
ordered
that:
1.
Phase
1 of the settlement proposal be and it is
hereby approved in all respects.
Respondent
shall
continue
maintenance
of
the
levee
in
such
condition
as
to
prevent
direct
leakage
through
the levee and to minimize the runoff from the
strip
pit
and
areas
surrounding
the
strip
pit.
Respondent will pump water from the pit onto the
surface
of
the
slurry
area
and
ensure
that
the
surface of the slurry area
is completely saturated
during
all
weather
conditions,
and
will
also
in—
stall
a 48 inch high snow fence across the entire
slurry area perpendicular to the prevailing wind
to reduce the blowing of fine particulate matter.
The Respondent will set up
a system for monitoring
the air and water as specified in this Opinion,
the details, however,
to be agreed upon between
the Environmental Protection Agency and the
Respondent.
7
—
135
2.
The action specified in paragraph 1 will be
taken as soon as possible and shall not be
discontinued by Respondent without the consent
of the Agency.
3.
Respondent and the EPA should continue with the
planning for Phase
2 of the settlement as
specified in this Opinion, and report progress
to this Board when substantial progress has been
made, but in no event later than six months from
the date of this Order.
The parties
shall not
consummate Phase
2 of the settlement plan without
revealing its details to this Board and without
the approval of this Board.
We retain jurisdiction
and the power to review and pass upon the plan for
finalreclamation and the contracts,
conveyances
and other documents proposed to transfer the property
to the not—for—profit organization and to carry out
the permanent program.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certi y
he above Opinion and Order was adopted
this
.,~74\
day of
_____________,
1973 by
a vote of
3
toO
4~~~/r)
~&~6
7
—
136