ILLINOIS POLLUTION CONTROL BOARD
December
2,
1976
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 76—151
FORSYTH CARTERVILLE COAL COMPANY,
Respondent.
Mr. Robert D.
Barewin appeared on behalf of Complainant;
Mr. Cedric Hustace appeared on behalf of Respondent.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Pollution Control Board
(Board)
upon a complaint filed by the Environmental Protection Agency
(Agency)
on May 13,
1976.
The complaint alleges that Forsyth
Energy,
Inc.
was merged into Forsyth Carterville Coal Company
with the name of
the surviving corporation being Forsyth Car—
terville Coal Company; that Respondent at all times pertinent
hereto, has owned and been the operator of a mined area on
which coal mining has occurred, known as the Energy Mine,
located
in Sections
3 and
4, Township 9 South,
Range
2 East,
and Sections
33 and 34, Township
8 South, Range
2 East of the
Third Principal Meridian,
in the County of Williamson,
Illinois;
that Respondent since on or about February
5, 1973
has ceased mining activities at the Energy Mine without at
that time or any time thereafter having been issued an aban-
donment permit by the Agency
in violation of Rules 201 and
502 of the Chapter 4: Mine Related Pollution Regulations
(Chapter
4);
and
t:ha
L
Respondent
iai.led to notify
the
Agency
within 30 days
of
the
cessation
of
all
mining
activities
in
violation of Rule
501(a) (1)
of Chapter
4.
The Board has before it two motions
to dismiss this case.
One is
a renewed motion to dismiss for want of jurisdiction.
This motion
is based on an objection to the fact that the
Attorney General
is not representing the Agency.
The repre-
sentation of the parties
iiwolved does not affect the juris-
diction of the Board.
The Board has stated in the past that
24
—
333
—2—
the Board would hear anyone designated by the Agency, EPA v.
Lindgren Foundry Co.,
1 PCB 11
(1970).
This motion is~~nied.
Respondent also has filed a motion to dismiss for failure to
state a claim,
The Board finds this motion
to be without merit.
The motion to dismiss for failure to state a claim is also
denied.
A hearing
in this matter was held in Marion,
Illinois on
September 23, 1976 and September
24,
1976.
At the hearing Mr.
Forsyth, Vice President of Forsyth Carterville Coal Company,
testified that mining activity occurred until February 1973
but because of the condition of the cut no coal was actually
being produced
(R.
218).
Also there was hauling of stockpiled
coal
(R.
218,
219).
Mr. Forsyth stated that he attempted to
use the tipple after this time but in fact did not use
it
(R.
223,
224).
Mr. Forsyth further stated he was not aware
that he needed an abandonment permit until he received notice
from the Agency
(R.
225).
Notice from the Agency was sent in
a letter dated March 22, 1974
(R.
224, Comp.
Ex.
3).
During
this time Respondent was obligated by a contract with Southern
Illinois Power Cooperative
(SIPC) entered into on April
1,
1972
(R.
196).
Under this agreement SIPC was to buy 300,000
tons of washed coal over a period of years
(R.
197).
During
this time the power company had the option of making Respon-
dent use their old tipple to wash the coal
(R.
198).
This
contract was renegotiated as of January
1,
1973
(R. 20l)~
1~t
this time SIPC still had the option of the coal being washed
at that tipple
(R.
202).
In the latter part of 1974 SIPC
determined
it would not want the coal washed
(B.
203,
204).
Respondent did receive a construction permit to effectuate
an abandonment program in contemplation of receiving an aban-
donment permit
(B.
28).
This permit was issued on August
20,
1975
(R.
27).
These items of work that needed to be accom-
plished were discussed at a compliance conference on January
8,
1975
(R.
49,
50).
On several dates after January
8,
1975
Agency in~pectton~~howed
liLLic or no Work had
been
done
to
bring
the site into compliance and there was no evidence
of
coal mining activity
(B.
55,
56,
60,
66,
67).
Work did begin
and moved slowly after May 20, 1976
(R.
66,
67).
The work required included plugging several drill holes,
draining the lakes east of the tipple and properly covering
them, removing the refuse from the ground around the tipple
and burying
it, diverting the Bear Creek flow around the
present pits and removal of the slurry
(Comp.
Ex.
1).
As of
September
15, 1976 two of the three bore holes were filled,
a
fourth had been accidently opened;
the lakes were covered but
24
—
334
—3—
grading and seeding were not complete;
the refuse around
the tipple was covered but not
to a sufficient depth; the
Bear Creek diversion was finished;
the status of the slurry
ponds was confused because of
a legal question of ownership
(B.
166,
167,
168).
The Board finds that in this case there
is enough
evidence to find Respondent in violation of Rules
201,
501(a) (1)
and 502 of Chapter
4.
The facts are not clear
as to an exact date of closing or lack of intention to
mine again;
however,
it
is clear that no thirty day notice
was ever given and that even
if the intention of mining was
not given up until the latter part of 1974 an abandonment
permit should have been obtained by the latter part of 1975.
A permit to perform necessary work to receive an abandon-
ment permit
is not the same as the abandonment permit itself.
Before the Board can fashion a remedy in this case it must
consider the factors of Section
33(c)
of the Act.
Obviously
in this situation the location is not in issue; a mine must
be where the coal
is.
There are no water samples presented
in evidence; however,
the potential for water pollution from
acidic coal runoff
is great.
Neighbors
of the mine,
~4r.
Jenkins and Mr.
Harris, were having problems with discharges
from bore holes seeping through their fields
(B.
59,
60).
There is no question that a well run coal mine has social and
economic
value
in providing employment and producing fuel;
however, an abandoned mine polluting the waters of the State
is of no value.
The very fact that Respondent has slowly
accomplished most of the necessary work is
in itself evidence
that this pollution abatement is economically and technolo-
gically feasible.
Respondent has been working on reclamation for the
Department of Mines and Minerals as well as pollution abate-
ment
(B.
211).
Respondent has spent from $350,000
to $400,000
to
comply
with
the
regulations
of
both
Mines and Minerals and
the
Agency
(R.
212,
213).
Approximately
$50,000 of this sum
has been for work concerning the Agency
(B.
213).
After receipt of the August 20, 1975 construction permit
Respondent also had a dispute with the United Mine Workers
over the jurisdiction of the Forsyth-Energy property
(B.
209).
This caused delay as did bad weather when rubber tired scrapers
could not run
(R.
211).
Mr.
Forsyth has always indicated a
willingness
to comply with the requirements
(R.
173).
24
—
335
—4—
The Board
finds that while Respondent has had some
legitimate
reasons for delay there was a period from the
latter part of 1974
to August 1975 during which Respon-
dent was unexcusably dilatory.
The Board further notes
that after the filing of the complaint herein Respondent’s
efforts increased
(R.
181,
182).
In this case the Board
finds that a penalty of $3000 is necessary to aid in the
enforcement of the Act.
Respondent shall also be required
to obtain an abandonment permit within
60 days of this
order.
This Opinion constitutes
the Board’s findings of fact
and conclusions ol Liw.
ORDER
It is
the order of the Pollution Control Board
that:
1.
Respondent
is found to be in violation of Rules
201,
501(a)
Cl)
and
502
of
the
Chapter
4:
Mine
Related
Pollution
Regulations.
2.
Respondent
shall
obtain
an
abandonment
permit
in
compliance
with
the
Regulations
within
60
days
of this order.
3.
Respondent shall cease and desist any further
violations of the Regulations and the Act.
4.
Respondent shall pay a penalty of $3000 within
35 days of this order.
Payment shall be made by
certified mail or money order payable to:
State of Illinois
Fiscal
Services
Division
Environmental
Protection
Agency
2200 Churchill Road
Springfield,
Illinois
62706
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control
Board, hereby certify the above Opinion and Order were adopted on
the
~
day
of
41L
~
1976
by
a vote of
3.c~
Illinois Pollution