ILLINOIS POLLUTION CONTROL BOARD
    February 27,
    1973
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    vs.
    )
    PCB 72—63
    TRUAX-TRAER COAL COMPANY, a division
    of CONSOLIDATION COAL COMPANY,
    Respondent.
    ENVIRONMENTAL PROTECTION AGENCY,
    Complainant,
    vs.
    PCB 72—153
    CONSOLIDATION COAL COMPANY,
    Respondent.
    Frederick C.
    Hopper, Assistant Attorney General for the EPA
    William
    F.
    Green, Attorney for Respondents
    OPINION AND ORDER OF THE BOARD
    (by Mr. Henss)
    Case No. 72—63 is an enforcement action against Truax—Traer
    Coal Company,
    a division of Consolidation Coal Company, alleging
    that Respondent had caused air pollution by allowing the emission
    of
    coal
    dust
    and
    other
    particulate
    matter
    in
    violation
    of
    Section
    9(a), Environmental Protection Act.
    It is alleged that Truax—
    Traer Coal Company owns,
    controls,”or
    is responsible for” a 57
    acre abandoned slurry field consisting mainly of coal fines located
    south of Pinckneyville in Perry County,
    Illinois.
    Case No.
    72-153 is an enforcement action against Consolidation
    Coal Company and involves the same property.
    The EPA alleges that
    Respondent owns and controls the discontinued strip mine operation
    of some 600 acres
    (the Pyramid Mine).
    The EPA charges that Re-
    spondent deposited contaminants
    in the form of
    a gob pile and other
    refuse on the land so as to create a water pollution hazard,
    allowed the discharge of contaminants so as to cause water pollution,
    bottom deposits of coal
    fines in Chicken Creek, and has created a
    nuisance from the color and odor of the discharges
    in Chicken Creek.
    7
    131

    —2—
    Respondents filed various Notions attacking the consti-
    tutionality of the Environmental Protection Act and of the
    proceeding generally.
    Respondent claimed that the Statute is
    unconstitutional under the doctrine of separation of powers
    (Article II, Section 1, Illinois Constitution), constitutes an
    unlawful delegation of legislative power to an administrative
    agency
    (Article IV, Section 1, Illinois Constitution),
    and
    is
    an unlawful attempt to confer judicial powers on an adminis-
    trativeagency
    (Article IV, Sections 1 and 9, Illinois Constitution).
    We have previously considered these constitutional questions in
    EPA vs. Granite City Steel,
    PCB
    70-34; EPA vs. Modern Plating
    Company,
    PCB
    70-38 and PCB 71-6 and will adhere to
    our
    earlier
    decisions.
    These Motions to Dismiss are denied.
    Respondent claims that evidence submitted at the hearing
    was either inadmissable or insufficient to prove the allegations
    of the Complaint.
    We do not rule upon all of these objections
    for the reason that a Stipulation for Settlement was submitted,
    and
    we will consider the testimony only as it relates to that
    Stipulation.
    We will not consider the evidence for any other
    purpose since the EPA had failed to comply with our discovery
    rules.
    Some 3 1/2 months prior to hearing, Respondent propounded
    interrogatories to the Complainant requesting the names of
    witnesses who
    had
    observed emissions of particulate matter,
    who
    had collected samples and run tests
    and
    therefore had knowledge
    of the quantity and type of emissions and the names of those
    witnesses who had suffered
    injury
    or
    unreasonable
    interference
    with their property as a result of emissions from the Respondent’s
    property.
    Respondent also asked the EPA to state whether it had
    photographs, reports or tests relating to the alleged air pollution.
    Our
    Rule 313 states that “the hearing officer shall order the
    following discovery upon written request of any party:
    list of
    witnesses who
    may
    be called at the hearing”.
    Respondent’s counsel
    objected strenuously to proceeding without the list of witnesses
    but upon the date of hearing did agree to waive the objection for
    the
    purpose
    of
    permitting
    testimony
    in
    support
    of
    the
    settlement
    agreement.
    In
    view
    of
    that
    Stipulation
    we
    accept
    the
    record
    for
    settlement
    purnoses
    At
    the
    same
    time
    we
    take
    this
    opportunity
    to emphasize that
    our
    discovery
    rules
    shall
    be
    enforced.
    In
    a
    contested hearing, witnesses who are not disclosed pursuant to
    properly
    submitted
    interrogatories
    shall
    not
    be
    permitted
    to
    testify.
    Oral
    disclosure
    of
    witnesses
    on
    the
    date
    of
    hearing
    is
    no
    guarantee
    against
    surprise
    and
    is
    not
    compliance
    with
    the
    discovery
    rule.
    The
    material
    submitted
    in
    support
    of
    the
    settlement
    stipulation
    indicates
    that
    the
    Truax-Traer
    Coal
    Company no longer exists.
    This
    Corporation
    at
    one
    time
    actively
    mined
    the
    area
    in
    questhn
    but
    discontinued
    active
    mining
    operations
    in
    1959
    and
    dismantled
    its
    plant
    in
    1960.
    Consolidation Coal Company purchased all of the
    7—132

    —3—
    stock of Truax-Traer Coal Company
    in 1962.
    Subsequently,
    Truax-Traer was dissolved.
    Consolidation Coal Company has
    ncver mined coal from the land in question and has no present
    or future plans to mine
    coal from it,
    Consolidation Coal
    Comnany continues to deny that it has any liability under the
    Environmental Protection Act but nevertheless, has entered
    into
    an agreement with the Environmental Protection Agency for
    the
    purpose
    of
    cleaning
    up
    the
    property.
    During
    bEe
    time
    the
    property
    was being
    actively
    mined,
    coal
    was
    mechanically
    washed
    of
    dirt,
    coal
    fines
    and
    other
    materials~
    and
    the
    waste
    products
    were
    deposited
    on
    the
    land
    in
    the
    form
    of
    slurry
    piles.
    The
    slurry
    field,
    at
    the
    present
    time,
    contains
    an
    estimated one million tons of deposited
    material.
    This
    material
    is blown about during a strong wind
    and is deposited upon the property of persons living
    in
    the area.
    ~1aterial
    from
    the slurry pile has covered porches and automobiles,
    has seeped through windows into homes
    arid,
    it is claimed, has
    pitted
    aluminum
    material.
    An EPA employee visited the mine and collected water samples
    which were delivered to the State laboratory
    in Carbondale
    for analysis.
    During the visit he observed seepage coming from
    the dam around the slurry pond and followed the seepage
    to its
    antrance into Chicken Creek.
    The flow in the ditch was slightly
    turbid and had a slight amber discoloration.
    Coal fines,
    coal
    refuse and a rusty orange deposit were observed in the stream
    bed--a violation of SWB-l4 Rule 1.03(a).
    The stream bed is
    covered with approximately 2 to
    3
    feet of coal refuse and coal
    fines
    for approximately 1/4 mile downstream.
    Stipulated photo-’
    grahs show these conditions of contamination quite clearly.
    The
    samples collected
    by
    the EPA investigator revealed that the
    discharge to Chicken Creek had a pH of 4.8
    in violation of
    SWB-l4 Rule
    1.05(b)
    .
    The Standard is
    6 to
    9
    pH.
    The
    evidence
    clearly
    indicates
    that
    property
    now
    owned
    by
    Respondent Consolidation Coal Company is
    a source of both air
    pollution and water pollution in the area.
    Respondent claims
    that
    it
    did
    not cause the gob pile or slurry field to be de-
    posited upon the land and has not ~‘a1lowed”the emissions from
    these sources.
    Nevertheless, Respondent is willing to enter into
    a Stipulation for the abatement of the pollution.
    The Stipulation
    includes
    a. short term proposal to immediately eliminate the
    pollution hazard and a long term proposal to develop
    a permanent
    solution for the disposition of
    this gob pile and slurry field.
    7
    133

    —4—
    Stage
    1 of
    the settlement provides for:
    1.
    Continued maintenance of a previously constructed
    $49,000 levee located between the open strip pit
    and public waters to minimize runoff and seepage.
    2.
    The pumping of water from the strip pit to the
    slurry area
    to completely saturate the slurry
    area
    and
    thereby
    prevent
    the
    blowing
    of
    dust.
    (Cost
    of
    pump,
    pipe
    and
    fittings
    $8900.)
    3.
    A system for patroling the levees, monitoring
    the air and water, analyzing seepage, and reporting
    findings
    to the EPA at agreed periods.
    4.
    Installation
    of
    a snow fence
    (cost $1,749)
    to
    break
    up
    the
    air
    flow
    and
    reduce
    the
    blowing
    of
    particulate matter.
    All of Stage 1 was to be completed by October
    31, 1972 and
    presumably
    is now in effect.
    Respondent has agreed not to dis-
    continue the maintenance of the temporary program without obtaining
    the consent of the EPA.
    Stage
    2 of
    the proposed settlement provides for use of the
    ~roperty
    in
    a training program and is intended
    to result eventually
    in the complete reclamation of the site.
    The plan is to convey the
    land to another corporation, the Southern Illinois Land and Human
    Resource Development Corporation,
    to develop a program of training
    minority and nonskilled people from Southern
    Illinois
    in
    skills
    associated with the reclaiming and developing of waste lands
    in
    that
    part
    of
    the
    State.
    Southern
    proposes
    to
    reclaim
    the
    coal
    fines and the slurry pile for use in Southern Illinois and possibly
    other
    areas
    as
    a
    partial
    means
    of
    off—setting
    operation
    costs.
    Many
    questions
    may
    be
    raised
    regarding
    this
    pilot
    project.
    Nothing
    has
    been
    submitted
    to
    us
    at
    this point
    to indicate whether
    the project is
    feasible
    from
    a
    financial
    or
    ecological
    standpoint.
    The
    quality
    of
    the
    coal
    fines
    in
    question
    may
    not
    he
    high
    enough
    to market.
    In the record there are indications that the heat
    content of this slurry material lies somewhere between 9,000
    and
    9,800 BTU/lbs. which is 2,000—3,000 BTU/lhs. less than that
    generally
    used
    by
    power
    plants.
    The
    material,
    therefore,
    may
    have
    a
    low
    heat
    content
    and
    at
    the
    same
    time,
    it
    may
    have
    a
    high
    sulfur
    and ash content.
    The demand for material of this
    type is presently
    very
    low.
    More
    data
    is
    needed
    to
    indicate
    whether
    the
    use
    of
    this
    fuel would result in
    a violation of our Regulations.
    7
    134

    —5—
    The most recent information does not show any firm source
    of funding for Southern.
    The Office of Economic Opportunity has
    apparently
    rejected
    the
    Corporation’s application for funds.
    With
    an
    uncertain
    market
    and
    without
    OEO
    financial
    backing
    the
    project
    may
    be
    in
    trouble
    from
    the
    beginning.
    It
    is
    far
    from
    clear
    to us that the parties have arrived at a permanent solution
    for
    the
    use
    of
    this
    land.
    However, we believe the parties should proceed with their
    planning.
    We
    cannot
    anticipate
    what
    final
    plans
    may
    be
    developed
    and
    will
    not
    at
    this
    point
    indicate
    our
    approval
    or
    disapproval.
    We
    will
    retain
    jurisdiction
    in
    this
    matter and reserve the power
    to review and pass upon the plan for final reclamation and the
    contracts,
    conveyances
    and
    other
    documents
    proposed
    to
    transfer
    the property to the not-for--profit organization and to carry out
    the permanent program.
    Stage one of the plan will put an end to
    the air and water pollution and provide the parties with the time
    so
    that
    they
    may
    thoroughly
    explore
    a
    more
    permanent
    program.
    We
    approve
    the
    temporary
    abatement
    program
    and
    we
    hold
    our
    final
    decision
    in abeyance while the parties proceed to make further
    plans for the development of the permanent program.
    There will
    he
    no
    financial
    penalty.
    We
    see
    no
    need
    to
    press for financial
    penalties under these circumstances and are very eager to pro-
    vide that atmosphere which will lead to
    a voluntary cleaning up
    of the mine waste areas of
    Illinois.
    ORDER
    It
    is
    ordered
    that:
    1.
    Phase
    1 of the settlement proposal be and it is
    hereby approved in all respects.
    Respondent
    shall
    continue
    maintenance
    of
    the
    levee
    in
    such
    condition
    as
    to
    prevent
    direct
    leakage
    through
    the levee and to minimize the runoff from the
    strip
    pit
    and
    areas
    surrounding
    the
    strip
    pit.
    Respondent will pump water from the pit onto the
    surface
    of
    the
    slurry
    area
    and
    ensure
    that
    the
    surface of the slurry area
    is completely saturated
    during
    all
    weather
    conditions,
    and
    will
    also
    in—
    stall
    a 48 inch high snow fence across the entire
    slurry area perpendicular to the prevailing wind
    to reduce the blowing of fine particulate matter.
    The Respondent will set up
    a system for monitoring
    the air and water as specified in this Opinion,
    the details, however,
    to be agreed upon between
    the Environmental Protection Agency and the
    Respondent.
    7
    135

    2.
    The action specified in paragraph 1 will be
    taken as soon as possible and shall not be
    discontinued by Respondent without the consent
    of the Agency.
    3.
    Respondent and the EPA should continue with the
    planning for Phase
    2 of the settlement as
    specified in this Opinion, and report progress
    to this Board when substantial progress has been
    made, but in no event later than six months from
    the date of this Order.
    The parties
    shall not
    consummate Phase
    2 of the settlement plan without
    revealing its details to this Board and without
    the approval of this Board.
    We retain jurisdiction
    and the power to review and pass upon the plan for
    finalreclamation and the contracts,
    conveyances
    and other documents proposed to transfer the property
    to the not—for—profit organization and to carry out
    the permanent program.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board, hereby certi y
    he above Opinion and Order was adopted
    this
    .,~74\
    day of
    _____________,
    1973 by
    a vote of
    3
    toO
    4~~~/r)
    ~&~6
    7
    136

    Back to top