ILLINOIS POLLUTION CONTROL BOARD
May 24, 1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
PCB 71—308
KENNETH
MARTIN, JR. and
MICHAEL
)
MARTIN,
Respondents.
and
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
vs.
)
PCB 72—328
PEABODY COAL COMPANY,
Respondent.
Delbert Haschemeyer and Larry Eaton, Assistant Attorneys General
for the EPA
Daniel Hall, Attorney for Peabody Coal Company
Charles W. Phillips, Attorney for Kenneth Martin,
Jr. and Michael
Martin
OPINION AND ORDER OF THE BOARD
(by Mr. Henss)
These two enforcement cases involve water discharges from coal
mining sites in southern Illinois and have been consolidated for
hearing.
The action against the Martins commenced with a Complaint
filed in October 1971 by the Environmental Protection Agency.
The
Martins,
as owners of an abandoned mine known as Peabody No.
47
located at Harco in Saline County, are alleged to have caused,
threatened or allowed the discharge of contaminants into streams
including Harco Branch, Brushy Creek, Bankston Creek and the middle
fork of the Saline River.
These discharges and the resulting
water pollution are alleged to be violations of Sections 12(a) and
(d)
of the Environmental Protection Act and Rules 1.03(a),
(c) and
(d),
1.05(b)
and
(d), and 1.07 of SWB—14.
8—6~
—.~‘—
Complaint against Respondent Peabody Coal Company was
filed in August 1972 alleging pollutional dischargeE
from
Peabody’s Will Scarlet mine located in Saline and Williamson
Counties.
The Complaint charges that on seven specific dates
and numerous prior and subsequent dates, Peabody operated the
mine facilities in such manner as to violate Sections 12(a),
(c)
and
(d)
of the Environmental Protection Act, certain
sections of SWB-lO and SWB-l4 and Chapter III and Chapter IV
of the Pollution Control Board Rules and Regulations.
The
streams affected by the mine discharges
in this Complaint were
said to be
“an unnamed creek”, Sugar Creek and the south fork
of the Saline River.
Initially these two cases fit the pattern of other liti-
gation which has recently been submitted to us involving mining
operations
in southern Illinois.
A number of old abandoned
mine sites are owned by individuals who do not have the resources
to clean up their properties.
In some cases we have found it
beneficial
to the Illinois environment to let large companies
which are under prosecution for their own violations conduct
abatement work on these non-owned abandoned sites in lieu of
the payment of monetary penalties.
(EPA vs. Kienstra Concrete,
PCB 72-72 and EPA vs. Bell
& Zoller Coal Company, PCB 72-258).
In the Martin case,
the Agency filed a Motion for Stay 9
days after filing the Complaint.
The case was not activated
again until November 29, 1972 when there was a Motion for
Con-
solidation with the Peabody case.
Subsequent recitals
in the
Martin case revealed that “the Respondents acknowledge that
water pollution existed as alleged in the Complaint”
(Stipulation
p.
4), but the Martins had never operated the mine and “effective
work to control or abate the pollutional discharges involved
would require an expenditure of funds far in excess of
Respondent’s
means and financial capacities”
(Stipulation p.
3)
Peabody, subject to serious charges for pollution at Will
Scarlet mine, obviously had resources to abate the pollution
coming from Peabody No.
47 the property now owned by the Martins,
and it appeared that all of the ingredients were present for a
Bell
& Zoller type settlement.
This action, however, has taken a different twist and we
must reject the settlement.
A brief recital of facts is important
to an understanding of the complexities of these two cases.
The roughly 229 acres of land upon which the Peabody No.
47
mine is located was acquired by Kenneth Martin, Sr. by quit-claim
deed on July 28,
1959.
Upon his death, control of the land went
to his wife Velma Martin and sons, Kenneth Jr. and Michael.
Mining
—62
—3—
operations by Peabody Coal Company terminated prior to July 28,
1959 and were not reactivated by the Martins.
The Martins,
however, have entered into a contract with a firm known as
Ferrells Coal Reclaiming Company for the removal of slurry which
remained on the surface of the ground following the Peabody
operations.
The Martins will receive 20~per ton for the
slurry removed.
Although the date that Peabody acquired the Will Scarlet
mine is not entirely clear, the record does show surface mining
operations were conducted throughout the area during the l960s
by a Stonefort Coal Company.
A December 24, 1965 letter from
the Sanitary Water Board refers to pollutional water discharges
at the Will Scarlet Mine, and this prompted Stonefort Coal to
initiate an abatement program.
This abatement included the
backfilling of abandoned deep mine workings, erection of earthen
levees, alteration
of the Saline River channel,
installation of
a treatment system to neutralize waste from the preparation
plant, and the covering of all active and future pits with spoil
material.
Monthly progress reports were to be submitted on the
work performed under the abatement program.
The Sanitary Water Board questioned several aspects of the
abatement program but generally approved of the Stonefort plans.
It appears that until June 1967 the Sanitary Water Board con-
sidered Stonefort Coal to be making satisfactory progress.
Correspondence indicates that the Peabody acquisition of Stonefort
probably occurred around June 1967.
Peabody continued the abatement program and for a time it
continued to have SWE approval.
Then,
on January
30, 1968 the
Sanitary Water Board warned Peabody of possible legal action
because of new pollutional discharges and failure to submit re-
quired status reports.
This letter also suggested,
among other
things,
that Peabody:
1) design a system for collection of
contaminated water,
2) develop mining methods in the new pits
that would leave only nontoxic pits and spoils and thereby
reduce pollutional drainage, and
3) develop a system of ditches
and dikes to collect drainage which had been discharging into
Grassy Creek and then pump this polluted water into the process
water system to be treated and used.
A series of meetings
followed this letter and led to correction of most of the problems
at the facility.
Still later in 1968 Peabody, with the help of the Sanitary
Water Board, obtained a Federal grant of $472,400 for a research
project to reduce pollution at Will Scarlet.
The project was
entitled “Lime/Limestone Neutralization of Acid-Mine Drainage”.
8—63
—4—
Throughout this period Peabody appeared to be in compliance
with SWB requirements.
However, some of the data submitted by the Agency in the
form of Group Exhibits now indicates that water quality at
certain locations near Will Scarlet does not meet current
standards.
Peabody acknowledges
that there were water discharges
from the Will Scarlet Mine on the dates alleged in the Complaint,
but denies that the discharges were in violation of the Regu-
lations.
Respondent states that the various discharges were
caused by:
a)
failure of routine pumping,
b) failure of an
earthen dam,
c)
intermittent overflow from an impoundment,
d)
seepage through a levee,
e)
overflow from an impoundment while
pump replacement was in progress.
It is stated that all of
these difficulties have been remedied by this date.
The parties ask us to approve
a settlement.
Under the
proposal which is now submitted to us Peabody will spend at
least $600,000 for abatement of pollution coming from the
abandoned Peabody No.
47.
The time is not specified for the
performance of this abatement work.
After the expenditure
of some $600,000 by Peabody, Martin might contribute some of
the profits from its slurry removal operation toward further
abatement.
The proposal is extremely vague in that respect.
Peabody would necessarily make much larger expenditures
for abatement at the Will Scarlet mine which it is now actively
mining.
Total expenditures at Will Scarlet are estimated to
be in excess of $15 million over a period of some seven years.
According to Exhibit E filed by the Peabody Coal Company,
if
the mine cortinues to operate “the pollution abatement costs
could be offset by increased coal prices”.
Even if the mine
ceases to operate the pollution control costs will be in excess
of $11 million.
However, Peabody’s agreement to perform the abatement work
at abandoned Peabody No.
47 is subject to some strange conditions.
For one thing, Peabody agrees
to accomplish additional work
beyond the $600,000 level “upon condition that the Environmental
Protection Agency obtain a
full and complete option in Peabody
at no cost to Peabody to all rights, title and interest in the
lands which are the subject of the contract”.
(Stipulation p.
5)
Just how and under what authority this State agency would go
about delivering the lands including mineral rights to Peabody
“at no cost to Peabody”
is not discussed.
The most unusual feature of the Stipulation is a “condition
precedent”
which we believe precludes our acceptance of the
8— 64
—5—
agreement.
It is stated as an “essential” part of the settlement
that before Peabody will abate the pàllution at abandoned Peabody
Mine #47,
this Board must approve a variance for Peabody in its
operation of the Will Scarlet Mine.
The variance petition
(Peabody Coal Company vs. EPA 73-58)
requests a variance from
Rule 502(a),
Rule
605 and Rule 606, Chapter IV Mine Related
Pollution Regulations.
These Rules deal with the procedure for
closing down
a mine, prohibit the violation of Water Quality
Standards and establish effluent criteria.
In Peabody’s petition,
(PCB 73-58)
it is contemplated that the variance would be extended
from year to year until the closing of the Will Scarlet Mine in
1980.
Other details of the proposed variance are given but we
will not discuss them further at this time since our decision will
have to await a hearing on the variance petition.
The same petition also includes an appeal by Peabody from a
permit denial for various operations at the Will Scarlet Mine.
We reject that part of the settlement which requires issuance
of a variance prior to the undertaking of the pollution abatement
program.
Rejecting that feature we therefore, must reject the
entire settlement.
Section
35 of the Environmental Protection Act
specifies that variances may be granted upon proof that compliance
with any Regulation or Order of this Board would impose an arbi-
trary or unreasonable hardship.
We will await such proof.
We
have previously stated in Kienstra that we are eager to provide
that atmosphere which will result in the cleaning up of the
polluted mining areas in Illinois.
We have indicated our willingness
in certain cases to forgo monetary penalties in order to obtain a
sound abatement program.
This can,
in some cases, be an inducement
to action which will result in a better environment.
It is difficult for us to see, however, how the quality of
the environment might be enhanced by trading
a known amount of
existing pollution for an unknown quantity of future pollution.
How could the public interest be served by allowing Peabody seven
years of pollutional discharges in return for a promise to clean
up the discharges from a mine it had abandoned earlier?
We have
no alternative but to direct that the case proceed to
a hearing
in due course and that we be supplied with a proper transcript
of the testimony or a new stipulation and settlement agreement.
We do not prejudge the variance request.
If proof is made,
consistent with statutory requirements,
that an undue hardship
exists then a variance will be granted.
We wish to clear the
air in advance of hearing, however,
as to the grounds for the
granting of
a variance.
A trade of the nature attempted here is
not acceptable.
8—65
—6—
In order to facilitate the further disposition of this
matter, we will rule on some procedural points.
On December 18,
1972 Peabody filed a Third Party Complaint asking for indemnity
from nine parties.
The parties added were:
County of Williamson;
Robert Mausey,
Jr.;
U.
S.
Department of Interior, Forest Service;
George Barnes; Lee Kidd;
Brown Brothers Excavating; Williamson
County Highway Department; Val G. Walker; and Rodney G. Choate.
Some of these Third Party Respondents moved to dismiss the Third
Party Complaint stating as one of the grounds that there is no
basis under the Environmental Protection Act for asking this
Board
to order indemnification.
On January
23, 1973 we stated
that the Motion to Dismiss would be taken with the case since a
hearing had already been held and we were then awaiting receipt
of the transcript of testimony.
Now that a further hearing is
contemplated we will dispose of this procedural matter by ordering
the Third Party action dismissed without prejudice as
to all
Third Party Respondents.
A reading of the Complaint and Answer
shows very clearly that the issues may be decided without the
addition of Third Parties.
Any request for indemnity must be
decided in a court of law.
If Peabody or the Environmental
Protection Agency or any individual wants to pursue an action
before this Board against those nine individuals, the pleadings
will have to be brought within the framework of the Environmental
Protection Act, and any monetary penalties imposed by this Board
for violation of the Statute or Regulations will be paid to the
State of Illinois and not to Peabody.
ORDER
It is ordered that:
1.
The proposed settlements are rejected and the
cases shall be scheduled for hearing.
Either
a
transcript of testimony taken at the hearing or
a new settlement agreement shall be submitted
for our consideration.
2.
The Third Party Complaint for Indemnity is
dismissed without prejudice as to all Third Party
Respondents.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, her~bycertify the above Opinion and Order was adopted
this
~
“ day of May,
1973 by
a vote of
‘/
to 0
8—66