ILLINOIS POLLUTION CONTROL BOARD

December 6, 1973

ENVIRONMENTAL PROTECTION AGENCY

COMPLAINANT

)

PCB 72—174

V-DAY COAL COMPANY

RESPONDENT

DENNIS K. MUNCY, ATTORNEY,

law firm of MPYER, CAPEL, HIRSCHFIELD, &

MUNCY, in

behalf of the ENVIRONMENTAL PROTECTION AGENCY

LARRY LESSEN & WILLIAM HAAS, ATTORNEYS, with SEBAT, 

SWANSON & 

BANKS,

in behalf of 

V-DAY

COAL

COMPANY

OPINION AND ORDER OF THE BOARD (by Mr. harder)

This

action involves a complaint filed by the Environmental Pro-

tection Agency against V—Day Coal Company, Inc., Reseondent, on April

27, 1972. The Complaint alleges that on September 15, October 13, Nov—

ember 3, December 

7 and 15,

1971, and continuing through to January 6,

1972, the Respondent

allowed the discharge of mine drainage from its

gob piles into the south branch of Grape

Creek, a tributary of the

Vermilion River, in violation of Section 12 (a) of the Environmental

Protection Act. The Complaint further alleges that the Respondent~s

discharges violated Sanitary Water Board 14 Rule 1.03 (a) and (c)

and Rule 1,08 (10) (b) (1) (3) continued effective pursuant to Section

49 Cc) of the Act.

The V—Day Coal Company, Inc., is a corporation authorized to do

business in the State of Illinois and owns and operates a coal mine

on which there are gob piles and is located approximately one mile

south of the city of Tipton, Vermilion County, Illinois.

A hearing was held on October 19, 1972.

Members of the public were

present at the hearing. The Board finds the following stipulated facts.

The Environmental Protection Agency undertook an investigation of Grape

Creek for possible pollution of that creek by V-Day Coal Company because

citizen complaints were received complaining of the discoloration of Grape

Creek~, and odors emanating from the creek during hot, dry weather (R. 5).

Laboratory analysis sheets were admitted into evidence covering samples

of water taken from Grape Creek on September 15, 1971, by the Environ-

mental Protection Agency indicating that the iron content of the water

increased from 1.96 mg/i at a location 100 yards upstream from the Re-

spondent~soperation to 28 mg/i at a location downstream from the Re-

spondent (R. 5-6) 

Photographs of Grape Creek showed the reddish color

of the water downstream of the Respondent. Physical observations made

—2—

by the Environmental Protection Agency representative on that date were

that the bank and stream bottom were orange and rusty colored. Drain-

age was seen coming from the Respondent’s mining operation which was

reddish in color and had an oily film on top. In addition, there was

observed no rusty discoloration in the stream within 100 feet upstream

of the Respondent (R. 7-8)

Laboratory analysis sheets were also 

admitted into evidence cover-

ing

samples collected by the Agency on October 13, 1971. These sheets

also indicated that the samples downstream from the Respondent were

greater in contents of iron, ammonia, sulfate, and other substances

than the samples upstream from the Respondent. Polluted seepage flow

was also found from the Respondent’s lagoon system into Grape Creek

(R.8-9). Physical observations made by the Agency representative on

that date were that there were orange bottom deposits downstream from

the Respondent and also increased color and turbidity (R. 10). An in-

vestigation made by the Environmental Protection Agency on November

3, 1971, found substantially the same results as the earlier two in—

ves~igations abovementioned (R. 11—12)

Evidence octained at the Agency’s December 7, 1971, investigation

:Lndicated, in addition to findings similar to the earlier investiga—

~ions, that there was an overflow of the south lagoon on Respondent’s

property into Grape Creek; however, this may have been caused by rec-

ent heavy rain (R.l2—15). A December 15, 1971, investigation found,

in addition to the findings similar to the earlier investigations, that

there was seepage from the north lagoon (R. 16)

After the above stipulated facts were read into the record, test-

imony was elicited from witnesses for both parties. The following

facts were elicited at the hearing. On October 4 and 17, 1972, En-

vironmental Protection Agency biologist William J. Tucker testified

that he made a survey of the Grape Creek near the Respondent1s opera-

tion. Mr. Tucker observed reddish deposits in the creek downstream

from the Respondent. He also stated that there were no plant organ-

isms on the bottom of the creek (R.2l). He also found no fish life

in the creek because the deposits with high iron content and the low

PH of the water suffocated the fish. He found no orange deposits up-

stream from the Respondent (R.19—22). He found the creek biological-

ly polluted since no organisms were present (R.24)

Calvin Locker, an Environmental Protection Agency sanitarian,

testified that there were other discharges into Grape Creek upstream

from the Respondent. These discharges included those from the Hegeler

community storm sewer and the Peterson Packaging and Filling (R.36).

Cheri Speisok, Vice-President and Secretary of Respondent, testi-

fied that $8,500 was spent by the Respondent in taking care of their

pollution discharge problems and that $3,500 of that sum was borrowed

from the Small Business Administration (R.49-50). She indicated that

10

—

214

—3—

the Federal Bureau of Mines had shut them down on September 28, 1972,

and that they were still closed, for safety reasons. An additional

loan for $66,000 was applied for on October 2, 1972, from the Small

Business Administration. This loan is to allow reopening of the mine.

If this loan is not obtained, Respondent has been advised by its attorn-

ey to file for bankruptcy (R.40). Respondent’s Exhibit #7 was admitted

into evidence showing that the Illinois State Water Survey had analyzed

water samples provided by the Respondent showing no violation of the

Regulations (R.52j.

Lawrence Maxwell, Respondent~s general maintenance man, testified

concerning the construction of Respondent’s dike system. He testified

that since September, 1972, when the construction was completed, no

overflow of the lagoons into the creek has resulted (R.65). Mrs.

Speisok testified that a permit was obtained from the Sanitary Water

Board for the construction of the dike system in March, 1970 (R.79).

The Board finds that there has in the past been a violation of the

Act and the Water Regulations by the discharges emitted into the south

branch of Grape Creek on the dates mentioned in the Complaint, with the

exception of the January 6, 1972, date for which no evidence was submit-

ted. The unrebutted evidence stipulated and elicited shows there were

violations committed by the Respondent. The samples of water from Grape

Creek taken immediately downstream from the Respondent in comparison

with the samples taken immediately upstream from Respondent bear this

conclusion out. In addition, there were physical observations of red-

dish water and bottom deposits immediately downstream of the Respond-

ent but not upstream. Physical observations, and samples thereof, in-

dicated that these pollutants came directly from the Respondent’s min-

ing operations. The water analysis which the Respondent provided is

unconvincing. It was one isolated test taken without specifics in the

record as to the conditions or the testing procedure. That test does

not stand up against the weight of the evidence.

The testimony has been conflicting as to what the situation was im-

mediately before the hearing on October 19, 1972. As late as July 21,

1972, an Environmental Protection Agency representative found violations

of the Act and Regulations (R.80-8l). However, since the September,

1972, completion of construction of the dike system no evidence was sub-

mitted by the Agency regarding Respondent’s discharges.

The question remaining concerns the amount of money penalty to be

levied against the Respondent. This action is similar to past actions

brought before the Board. In both Environmental Protection Agency vs.

Truax-Traer Coal Company and Consolidation Coal Company, PCB 70-10 and

~nvirbnm~ntal Protection Agency vs. Ayrshire Coal Company and American

Metal Climax, Inc., PCB 71-323, violations of Section 12(A) of the En-

vironmental Protection Act and of Sanitary Water Board 

14 were found.

Penalties in these actions were imposed for violations determined. Re-

spondent has provided its income tax returns from 1968 through 1971 in-

10— 215

—4—

dicating that it is now operating at a loss. At least $118,000 in loans

have been obtained from the Small Business Administration in order to

keep operating. The purpose of a money penalty is to penalize but not

to force an industry out of business if the pollution can be abated in

the future, It must further be remembered that Respondent’s mine is

presently not operating, and that the impact of a penalty is magnified

greatly because the facilities are not generating income for Respond-

ent. At this point a large monetary penalty would only serve to siphon

off funds which could much better be applied to anti-pollution devices,

if found necessary by the Environmental Protection Agency. Therefore

the penalty imposed will be less than those imposed in the two above-

mentioned similar cases.

The social value of the Respondent’s facilities must also be con-

sidered. Respondent did supply 

hundreds of families low sulphur

coal for household heating use. It has been shown (R.42) that Respond-

ent is the only supplier in Vermilion County of this type of coal at a

reasonable price. Because of the financial situation presented by Re-

spondent, the monetary penalty will be lower than would normally be

imposed in this type of action.

This Opinion constitutes the findings of fact and conclusions of

law of the Board.

ORDER

IT IS THE ORDER of the Pollution Control Board that V-Day Coal Com-

pany has been found in violation of Section 12(A) of the Environmental

Protection Act and Rules 1.03(A) and Cc), 1.08 (10) (b) (l),(3) of Sani-

tary Water Board 

14.

V-Day Coal Company shall pay to the State of Illinois

the sum 

$500 within 35 days from the date of this

Order. Penalty payment by certified check or money

order payable to the State of Illinois shall be made

to: Fiscal Services Division, Illinois Environmental

Protection Agency, 2200 Churchill Road, Springfield,

Illinois 62706.

2, V-Day Coal 

Company shall upgrade, operate

and maintain

its pollution 

abatement facilities

in such a manner so

to insure compliance with all applicable rules and

regulations. This order shall include applying 

for

permits and meeting any conditions for said permits that

the Environmental P~tection Agency shall deem necessary

to achieve

compliance.

IT

IS SO ORDERED,

I,

Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, certify that the above Opinion and Order was adopted by the

Board on the

day

~

1973, by a 

vote of ~

to

Mr

~~nss not present.