ILLINOIS POLLUTION CONTROL BOARD
    February
    17,
    1971
    ENVIRONMENTAL PROTECTION AGENCY
    v.
    )
    #70—10
    TRUAX-TRAER COAL COMPANY AND
    CONSOLIDATION COAL COMPANY
    OPINION AND CONSENT ORDER
    OPINION OF THE BOARD
    (BY MR.
    LAWTON)
    Complaint was filed by the ENVIRONMENTAL PROTECTION AGENCY
    against Respondents, TRUAX-TP~ERCOAL COMPANY and CONSOLIDATION
    COAL COMPANY,
    alleging that during the period from May
    25,
    1970
    through June
    3,
    1970,
    Respondents were observed to be polluting
    the waters
    of the Little Muddy River and the Big Muddy River
    Watershed,
    by discharging
    into those waterways polluted water
    from the Truax-Traer coal mines,
    in violation
    of the Sanitary
    Water Board Act and Regulation SWB—l4
    of
    the State Sanitary Water
    Board.
    The complaint asked
    for the entry of an order directing
    Respondents
    to cease and desist polluting the waters of the Little
    Muddy River and
    the
    Big Muddy River Watershed and for the assess-
    ment of the following penalties:
    (1)
    a penalty
    in the amount
    of $5,000,
    plus
    $200 for each day
    such violation
    shall be shown
    to have continued;
    and
    (2)
    the value
    of fish or aquatic life shown
    to have been destroyed.
    Rule
    1.03(d)
    of Sanitary Water Board Fegulation SWB-l4,
    applicable to
    tne Big Muddy and Little Muddy
    Rivers, prohibits
    municipal,
    industrial or other discharges
    in concentrations or
    combinations which are toxic or harmful
    to human,
    animal,
    plant or
    aquatic
    life.
    Chap.
    19,
    Par.
    145.13,
    Ill.
    Rev.
    Stat.
    (1969) being
    the Sanitary Water Board Act,
    now repealed but in force on the dates
    of the alleged violations,
    provided for
    a penalty of $5,000 and not
    in excess of $200
    a day for violation of the Act or determinations
    of the State Sanitary Water Board.
    The Act also provided
    for
    the
    imposition of
    a penalty in the amount of the reasonable value of
    fish killed as
    a consequence of water pollution.
    The
    enactment
    of
    the
    Environmental
    Protection Acts Chap.
    111-1/2,
    Par.
    1049
    and
    Par.
    1050,
    Ill.
    Leg.
    Ser. 1970
    Laws
    #2, repealed
    the State Sanitary
    Water Board
    Act;
    but
    kept
    in full force
    and effect all regulations
    promulgated
    by the Sanitary Water Board and vested
    in the Pollution
    Control Board power
    to enforce these regulations.
    All proceedings
    respecting acts done before the effective date of the Environmental
    Protection Act were to be determined
    in accordance with the
    law and
    regulations
    in force at the
    time
    such acts occurred.
    1
    225

    Respondent filed
    a special limited appearance challenging
    the jurisdiction of the Pollution Control Board and
    an answer
    and amendment
    thereto.
    Hearings were conducted by the Hearing
    Officer in Carbondale
    on October 29, December
    3 and December
    4,
    1970,
    on which latter date
    a settlement agreement entered into
    between the Agency and Respondents was submitted to the Pollution
    Control Board
    for approval.
    The Chairman of the Board and the
    Hearing Officer conducted a settlement conference with counsel for
    the respective parties at Edwardsville
    on January
    6,
    1971, pursuant
    to which conference
    the parties entered
    into
    a stipulation and
    agreement more fully embodied in this opinion and order.
    The evidence introduced at the various hearings
    and the
    stipulation of the parties sustain the following facts which consti-
    tute findings of tue Pollution Control Board:
    Consolidation Coal Company
    is
    the legal title holder of
    Burning Star Slope Coal Mine located
    in Jackson County,
    Illinois.
    Truax—Traer Coal Company
    is an operating division of
    said company.
    On March
    1,
    1970, the Truax-Traer Coal Company submitted
    to
    the State Sanitary Water Board a report setting forth a proposed
    plan for abatement of pollutional discharges from the Burning
    Star
    Slope Coal Mine, which report was accepted by the State
    Sanitary Water Board on April
    8,
    1970.
    Both Respondents have en-
    gaged in activities pursuant to
    the terms
    and provisions
    of the
    report, with the objective
    of achieving
    such abatement.
    However,
    on or about May
    25,
    1970,
    as
    a consequence of the cave—in of
    portions
    of the abandoned Burning Star Slope Coal Mine,
    a pollutional
    mine water discharge was generated resulting
    in pollution of the
    Little Muddy River, which pollutipnal discharge Respondents admit.
    The evidence introduced indicates that mine water discharges con-
    tain
    iron oxide,
    iron sulphate and are of high acidity.
    As
    a result of this pollutional discharge,
    a substantial fish-
    kill occurred
    in the Little Muddy River, which fishkill is acknow-
    ledged by Respondent
    as resulting from the pollutional discharge
    emanating from the Burninq Star Slope Coal Mine.
    This fishkill con-
    stitutes
    a violation of Chap.
    12,
    Par, 145.13,
    Ill.
    Rev.
    Stat.
    (1969), which statute was
    in force and effect on the dates of such
    violation as set forth above.
    Evidence introduced by the Environmental Protection Agency
    and stipulation of the parties,
    support the finding that the reason-
    able value of
    the fish killed
    as
    a result of the pollution~ldischarge
    is $3,750 which amount Respondent Consolidation Coal Company,
    agrees
    -~
    226

    to pay to the Illinois Department of Conservation within
    a reason-
    able time after
    the entry of this order.
    The Board believes this
    penalty to be reasonable
    in consideration of the total quantity of
    dead fish observed and the estimate of the total number of fish
    killed as
    a result of the pollutional discharge,
    together with the
    absence of intent on the part of Respondents
    and the actions being
    taken
    by them to prevent a recurrence of such pollutional discharge
    and fishkill.
    The entry of this order settling and disposing of
    the
    violations alleged relative
    to the fishkill an~ the agreement by
    Respondent Consolidation Coal Company,
    to pay
    ~iepenalty as afore-
    said, will render unnecessary for decision th~ ~1egrut~oru::of
    Respondents relative to jurisdiction
    of the Pollution Control Board
    set forth in their special limited appearance.
    Notwithstanding the settlement
    and disrositic:. by the Board
    relative to the specific pollutional discharce
    sad Hsbkill which
    were the basis of the complaint
    in
    this oroceeding,
    potential
    for further pollution from the abandoned mine continu~,,
    It
    is
    the
    view of the Board,
    in which the parties concur,
    ihat
    thu.~. roceeding
    should remain open
    for the consideration
    Co~ible entry of
    a cease
    and desist or other orders
    as shall be a~rca nat:
    tb resrect
    to
    a program to minimize
    the likelihood
    of
    a
    r :arr~a
    of aotential
    mine water discharge from the snbCect oronort a.
    to
    ~arties
    shall
    file such further pleadings as are
    ararro
    tate.
    to achieve
    this
    result.
    The Respondents may
    file
    a petition
    t n~v-a: i
    ltiCO
    which,
    if filed, will be consolidated with
    the penbic
    rocaeding.
    Tile
    Board
    shall conduct such further hearings
    as are necessary
    to assure
    compliance with the relevant statutory arovisions
    and regulations.
    IT
    IS THE ORDER OF THE POLLUTION CONTROL BOARD:
    (1)
    A penalty
    in the amount of $3,750 be and
    is hereby
    assessed against Consolidation Coal Company and
    Truax-Traer Coal Company for the killing of fish
    in the Little Muddy River,
    resulting from the
    pollutional discharge from the Burning Star Slope
    Mine owned by Respondents.
    Said penalty shall be
    paid to the Illinois Department of Conservation
    within twenty days from the date hereof.
    No other
    penalties shall be assessed against Respondents
    as a consequence
    of the pollutional discharge
    occurring between May 25 and June
    3,
    1970.

    (2)
    This proceeding
    shall remain open for consideration
    of
    a possible order relative to
    a program
    to minir~ize
    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 orders as shall be appropriate
    to assure compliance with
    all relevant statutary
    provisions and regulations.
    (3)
    Respondents by this Consent Order are not foreclosed
    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 dis-
    charges 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.
    I,
    Regina
    H.
    Ryan, certify that the Board, has approved
    and Consent Order
    this /7~day of
    We consent to the entry of
    the foregoing Opinion and
    Consent Order:
    ENVIRONMENTAL PROTECTION AGENCY
    By
    TRUAX-TRAER COAL COMPANY and
    CONSOLIDATION COAL COMPANY
    By(~
    --
    228

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