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now repealed but in force on the dates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#2, repealed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
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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
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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(~
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