ILLINOIS

POLLUTION

CONTROL

BOARD

July

12,

1973

ENVIRONMENTAl

PROTECTION

AGENCY,

)

Complainant,

vs.

)

PCB 71—308

NENNETII MARTIN,

JP. and MICHAEL

MARTIN,

)

Respondents.

ENVI

RONNENTAL

PROTECTION

AGENCY,

Com~1ainant,

vs.

)

PCB

72—328

PEABODY

COAL

CONPANY,

)

Res~ondent.

ORDER

OF

TNL:

L3OARD

UPON

PETITION

FOR

RECONSIDERATION

(by

Mr.

Henss)

The

parti~s

have

jointly

filed

a

Petition

for

Reconsideration

and

Modification

of

our

Opinion

and

Order

of

May

24,

1973.

They

request

that

we

now approve the settlement which was earlier re-

jected

by

the Board on the ground that the settle~centproposal here

is similar to that we approved in EPA vs. Bell

& Zoller, PCB 72-258.

It is ouite different.

In Bell

& Zoller we held that in an enforce-

merit case,

Respondent~svoluntary abatement of pollution not caused

by

him

would be

considered

in

lieu

or in mitigation of monetary

penalty.

We made essentially

the

same holding in EPA vs. Kienstra

Concrete PCB 72-72.

Neither the Bell

& Zoller nor the Kienstra

case involved a variance.

The settlement presented to us in the instant case

is

different from Bell

& Zoller in that

a variance is involved.

There

are also other differences, but in their Petition for Reconsideration

the parties concentrate on showing that we misunderstand their

1condition precedent~and that in actuality there is no trade—off

involving a variance at the Will Scarlet Mine.

If that

is so, the

8

—

439

---

—2—

parties will surely have no objection to resubmitting the

settlement in a better form.

At the present time we are faced

with the following provisions.

Section V of the Settlement provides for an ancillary

contract whereby Peabody will abate pollution at abandoned

Peabody Mine #47, now owned by Martin.

This ancillary contract

“will contain the following essential terms, or alternatives thereto:

1.

Condition precedent that the agreedenforcement

order presented with this Stipulation and of

the variance requested by Peabody by its

responsive pleading in this matter, will be

approved and granted by the Board before

cozr~nencementof work..

Section VI is entitled “Variance Required” and specifies

a

variance at the Will Scarlet Mine from the mine drainage effluent

limitations,

the variance to be renewed year to year until 1980.

The final paragraph of the Stipulation includes this language:

“It is further expressly understood that the foregoing

Stipulation

is null and void except for paragraph I—IV,

and may not be considered or used as admissions nor

introduced as evidence in any proceedings until and

unless

a variance petition filed by the Respondent,

Peabody Coal Company,

is granted in substantially the

form requested and unless and until the legality of

the agreement referred to in paragraph V and the terms

of the variance referred to in paragraph VI of

this

Stipulation and Agreement is indicated to be legal

either via an Opinion from

the

Attorney General of

the State of Illinois or by

a declaratory action

filed in and determined by the appropriate Circuit

Court of the State of IllinOis”.

This seems to us a clear statement that Peabody would not

perform pollution abatement work at abandoned Peabody *47 unless

it received a variance from the effluent limitations at Will Scarlet

Mine.

We

repeat

that

variances

are

not

to

be

included

in

such

bargaining.

if

the

parties

do

not

really

intend

to

include

a

variance

in

the

bargaining,

we

encourage

them

to

resubmit

this

settlement

to

us

in

a

document

without

this

arid

other

languace

we

have

found

cbjece±cndtle.

It

should

be

possible

to

delete

all

reference

to

8

—

440

---

—3—

the variance since Peabod~’has now withdrawn its variance petition.

The

variance was initially requested in this action but was sub-

sequently continued by Peabody in PCB 73-58.

Peabody’s withdrawal

of their variance in 73—58 we construe to be a withdrawal of the

variance recuested herein.

With the removal of the variance

request a Bell

& Zoller settlement is now possible.

The Motion for Reconsideration and Modification is denied.

I, Christan L. Moffett, Clerk of the Pollution Control Board,

hereby certify

the

above Order

was

adopted

this

M~’

day of

July,

1973 by a vote of

~‘

to

~