ILLINOIS~PQLLUTION CONTROL BOARD
June
9,
1971
ENVIRONMENTAL
PROTECTION
AGENCY
#71—54
v.
TRUAX-TRAER
COAL
COMPANY
AND
CONSOLIDATION
COAL
COMPANY
OPINION
OF
THE
BOARD
(BY
MR.
LAWTON):
On
February
17,
1971,
an
Opinion
and
Consent
Order
was entered
by
this
Board
as
a
consequence
of
an
enforcement
action
brought
against
Truax—Traer
Coal
Company
and
Consolidation
Coal
Company,
which
had
alleged
that
during
the
period
from
Nay
25,
1970
through
June
3,
1970,
Respondents-
had
pol:Luted
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
SWB—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 Comphny and
Truax-
Traer
Coal
Company
for
the
fishkill
resulting
from
the
pollutional
discharge
of
the
Burning
Star
Slope
~‘iine
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
pollution
discharge
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
statutory
provisions
and
regulations.
(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 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.”
Notwithstanding the express directive to both parties set forth in the
above order,
nothing has been received to date from the Environmental
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
Variance’,
filed by Consolidation Coal Company, reciting the history
of 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, Consolidat~ion
Coal Company,
of which Truax-Traer Coal Company is an operating divi-
sion,
the alleged Petition for Variance requests the entry of an Order,
as follows:
“1.
That the Environmental Protection Act
of the State of
Illinois does not apply to underground mining operations
at
Burning Star Mine which have been abandoned prior to the effec-
tive date of the Statute and on which no active mining operations
have been conducted since the effective date of said Statute.
2.
That the provisions
of the Environmental Protection
Act of the State of Illinois
do not apply to underground mining
operations conducted by predecessors
in title which were aban-
doned by said predecessors in title prior to your Petitioner
acquiring title
to said property and upon which your Petitioner
has conducted no mining operations
since acquiring title.
3,
That the Environmental Protection Agency ceases and
desists from any further prosecution of Petitioner,
Con~olidation
Coal Company, under the provisions of the Environmental Protection
Act of the State of Illinois
as
a result of any discharge of
water from the underground mining operations
at Burning Star
Mine.”
It is obvious that the document filed by Petitioner,
Consolidation
Coal Company,
is not
a variance petition in any sense of the word.
What petitioner seeks is,
in effect,
a declaratory judgement that the
1
—
686
Environmental Protection Act does not apply
to Petitioner’s operation.
Section
35 through 38,
inclusive,
of the Environmental Protection
Act, permit
the granting of individual variances
from the regulations
promulgated pursuant thereto when the imposition of such requirement
will result in an arbitrary or unreasonable hardship.
Section 401
of the Rules of the Pollution Control Board provide
as follows:
“Petition.
(a)
A variance proceeding
shall be commenced
by filing
a petition for variance with
the Agency and by
filing ten copies of
the petition with the Clerk of
the
Board.
The petition shall contain the follo”ing:
(1)
a concise statement of the facts upon which the
variance is requested,
including a description of the busi-
ness or activity
in question;
the quantity and type of raw
materials processed;
an estimate of the quantity and type
of contaminants
discharged;
a description of existing and
proposed equipment for the control of discharges; and
a time
schedule for bringing the activity into compliance.
(2)
a concise statement of why the petitioner believes
that compliance with~theprovision from which variance
is
sought would impose an arbitrary or unreasonable hardship,
including
a description of the costs
that compliance would
impose on the petitioner and others and
of the injury
that
the grant of the variance would impose on the public;
and
(3)
a clear statement of the precise extent of the relief
sought.
(b)
The petition may be accompanied by
such affidavits
or other proof as the petitioner may submit in order to make
it
possible
for the Board,
if it so decides,
to dispose of the
matter without
a hearing.”
It is obvious that petitioner has failed to comply with the
statutory and regulatory provisions
for the filing of
a petition for
variance, and the petition
is accordingly dismissed.
We do accept
the
petition,
however,
as
a
response
to
the
Board’s
Order
stating
the
company’s position as to its responsibility for future incidents.
The
failure
of the Environmental Protection Agency to comply with
the Order
as originally entered,
or to file
a responsive pleading to the alleged
variance petition, has only served to prolong the ultimate resolution
of this matter.
1
—
687
IT
IS
THE
ORDER
OF
THE
POLLUTION
CONTROL
BOARD:
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
providing for the entry of
a dease and desist order
against
Respondents,
pursuant
to
either
of
which
this
Board
will
conduct
further
hearings
as
appropriate.
I,
Regina
E.
Ryan,
Clerk
of
the
Board,
certif$~that
the
Board
has
approved
the
doie
Opinion
this
Z~~Day of
______________,
1971
~
I
68&