ILLINOIS POLLUTION CONTROL BOARD

April 16,

1987

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Complainant,

v.

)

PCB 83—163

LARRY BITTLE d/b/a

Southern Recycling,

a

dissolved Illinois

corporation, WILLIAM GAMBER,

LEONARD

C. BITTLE, and

3

MAX MITCHELL,

Respondents.,

MR. GREIG SIEDOR,

MR.,

JOSEPH MADONIA,

MR., MARK LAROSE AND MS.

LISA ELIN MORENO APPEARED ON BEHALF OF THE COMPLAINANT.

MR.,

RON OSMAN APPEARED ON BEHALF OF RESPONDENTS LARRY BITTLE

d/b/a Southern Recycling, WILLIAM GAMBER, AND LEONARD MITCHELL.,

MR., DON JOHNSON APPEARED ON BEHALF OF RESPONDENT

3. MAX MITCHELL.

OPINION AND ORDER OF THE BOARD

(by

R.

C.

Flemal):

This matter comes before the Board upon the November 8,

1983, Complaint filed by the Illinois Environmental Protection

Agency (“Agency”)

The Complaint was subsequently amended on

March

1, 1984,

and hearings were held on February 17—20 and April

l_3L,

1986,

in Benton,

Illinois.,

The Complaint alleges

violations of sections 12(a),

(b), and

(f)

of the Environmental

Protection Act

(“Act”), violations of sections 302.201,

302.204,

302.208, 309102, 403.102, 406.105, 406.106(b), and 407.104 of

the Board’s

regulations, and violations of Rules

201

(now section

1 The seven days of hearing which were conducted

in this case

resulted

in the production of eight volumes of transcription.

The

first two volumes

represent transcription of the February

17,

1986, hearing.

The second of these was not paginated

consecutively from the

first.,

The remaining~volumes, however,

were paginated consecutively from the third.

Therefore,

all

references

to the first transcript will be indicated by

“Tr.,

1

at

“

and to the second by

“Tr.,

2 at

______“,

while

references to the other transcripts will

read simply

“R.,

at

77-84

---

—2--

402.101),

502

(now section 405.102), 601(a)

(now found

in section

406.101), and 606(b)

(now found in section 406.106)

of Chapter 4

of the Board’s prior system of regulations.

The procedural history of this case

is lengthy and complex,

and for the sake of clarity will not be recounted

in full

in this

Opinion.

Counsel for Larry Bittle d/b/a Southern Recycling,

Leonard Bittle, and William Gamber raised

two preliminary motions

at the February 17,

1986, hearing in this matter, however, and

in

addressing

itself to these motions the Board must detail

those

portions of the procedural history which are relevant to these

motions.,

Therefore,

a selective description of the procedural

background

of this case

is contained in the following discussion

of the

facts.,

BACKGROUND

In 1978,

3., Max Mitchell, owner

of

a parcel of land

in

Franklin County,

Illinois, commonly referred to as the Peabody

No.

18 coal mine s~te,was approached by Larry Bittle d/b/a

Southern Recycling

(“SR”).,

Larry Bittle,

Leonard Bittle, and

2 Respondents

Larry Bittle, Leonard

Bittle, and William Gamber

are individually alleged

to have been affiliated,

in various

ways,

with Southern Recycling,

a dissolved Illinois corporation,

during the period

in which they or Southern Recycling or both

allegedly engaged

in an

illegal carbon recovery operation at the

Peabody No.

18

site.,

If in fact an illegal carbon recovery

operation is found

to have existed,

a primary issue for the Board

to determine will be whether Larry and Leonard Bittle and William

Gamber conducted such activities in their

individual capacities,

or whether they acted solely

in behalf of Southern Recycling and

thus enjoyed immunity from any personal liability relating to

corporate activities.

In order

to simplify the description of

the activities relating

to the Peabody No.

18 site, these three

Respondents will be referred to by name,

without reference to

them “doing business as Southern Recycling”.,

The Board

is

cognizant, however,

of these Respondents’ contentions that they

were doing business as Southern Recycling at all times during

which the carbon recovery process was

in operation.

77-85

---

—3--

William Gamber were interested

in operating

a carbon recovery3

process on the site,

and on Novembçr

2,

1978, they reached

a

series of agreements with Mitchell~that provided for the lease

of the property to SR and them in their

indi’gidual capacities

for

that purpose

(R, at 687—689, Agency Exhibits~1 and

2).,

Carbon

recovery took place

at the Site

for approximately

a month

in the

fall of 1978, and then

in the spring, summer, and fall of 1979

(R, at 733).

No carbon recovery has taken place at the

site

since that

time.,

At the time

the lease agreement pertaining

to the Peabody

No,

18 site was entered into (November,

1978), the ownership of

SR shares was evenly divided between Larry Bittle,

Leonard

Bittle, and William Gamber

(R.,

at 1040).,

In 1979, 40 percent of

the corporation was sold

to other individuals; Larry Bittle,

Leonard Bittle, and William Gamber each retained 20 percent

shares

(R,

at 1342; Bittle

Exhibit6 18)

“Carbon recovery”

is

a process sometimes undertaken at sites on

which coal mining once took place.

If

former mine sites are

older

in nature,

there often exists

a great deal of refuse

material present.

This material, which may be coarse or fine

in

character, was produced as

a by—product of

the coal washing

process which took place at the time of the original mining

(Tr.,

1 at 30—31,

49).,

The coarse material, consisting

of large chunks

of coal and rocks,

is commonly referred to as “gob”.

The fine

material

is actually produced

as

a result of the waste water

flowing away during the coal washing process.

This wash water,

which generally flows

into a holding

or

“slurry” pond, contains

Small particles of coal (“coal fines”),

As these

fines settle,

the pond gradually fills and eventually becomes unable

to hold

very much water

(Tr.,

1 at 49—50).

The carbon recovery operation

which took place on the site at issue

in this case concentrated

on recovery of coal fine material, initially from the slurry pond

area of the site and later

from other areas of the site as

well.,

(Tr,

1 at

39—40, 45—47),

This

is actually something of a simplification,

as the lease

agreement between the parties here was entered

into by Mitchell

and his wife Virginia (as owners)

and John and Melody Turner

(as

lessees)

as parties of the First Part, and SR, Larry and Leonard

Bittle, and William Gamber

as parties of the Second

Part.

Of the

parties of the First Part to the lease agreement, only Mitchell

himself has been made a Respondent in this action.,

Hereinafter referred to as

“A.,

Ex.,”.

6 Hereinafter referred to as

“B.,

Ex.,”.

77-86

---

—4--

RELATED LITIGATION

On July 3,

1979,

the People of the State of Illinois by

William 3.

Scott, then Attorney General, filed

a complaint in the

Circuit Court of Franklin County on behalf of the Agency against

SR and Larry Bittle

(Mitchell

Exhibit’

12).,

The complaint sought

preliminary and permanent injunctions enjoining SR and Larry

Bittle from conducting carbon recovery operations at the Peabody

No.,

18 site.

The Circuit Court denied the motion

for preliminary

injunction on July 12, 1979

(Id,).,

SR and Larry Bittle filed a

motion

to strike and dismiss the complaint on July 24,

1979

(Id),

After granting the Agency several extensions of time for

reply, the Circuit Court eventually ordered the Agency to reply

to the motion to strike and dismiss by September

14,

1979

(Id.).,

The Agency never responded, but did file a motion for

leave to amend complaint, and an amended complaint, on December

2,

1981

(Id.,).,

The Circuit Court dismissed

the complaint with

prejudice,

and denied the motion for leave

to amend, on July 26,

1982

~

Mitchell filed an action of his own

in the Franklin County

Circuit Court on September 30, 1982

(M.

Ex.,

13).,

His complaint,

filed against SR and Larry Bittle, Leonard Bittle, and William

Gamber,

sought termination of the November

2,

1978 lease

agreement pertaining

to the Peabody

No.,

18 site due

to the

alleged breach by the Defendants there of certain provisions of

that agreement

(Id.,).

The Defendants never entered an appearance

in that action, and judgemerit was entered

for Mitchell on

November

18,

1982,

for the relief he requested.

PRELIMINARY MATTERS

Motions to Dismiss

Respondents Larry Bittle, Leonard

Bittle, and William Gamber

made two oral motions

to dismiss at the beginning of the first

hearing held

in this matter.

Essentially similar motions have

been previously adjudicated by the Board.,

The first motion requests dismissal of Leonard Bittle and

William Gamber from this action on the basis of res judicata and

that they were improperly made parties

to this case

(R. at 11—

15),

On February

9,

1984,

the Board struck the same motion

for

reason of late filing.

Hereinafter referred

to as

“M.,

Ex.,”.,

77-87

---

—5—

The second motion

to dismiss offered by these Respondents

requests that the Agency be prohibited,

on the basis of res

judicata, from prosecuting any violations alleged to have

occurred

at the site prior to July 26,

1982.

On that date the

Franklin County Circuit Court dismissed with prejudice an action

brought in that forum by the People against SR and Larry Bittle

(People v.

Southern Recycling

Co., and Larry Bittle,

No., 79—CH—

35).,

The complaint in that matter alleged that the site had been

operated without

a permit from November 23, 1978, until July 3,

1979,

and then abandoned without a permit as well,

On February

9,

1984 the Board

ruled

on

a similar motion, and struck that

~

portion of the instant complaint containing similar allegations°,

to the extent that they were alleged

to have occurred between

November

23,

1978, and July 3,

1979.

The Board

has not been persuaded

that its February 9,

1984,

rulings on the two earlier motions similar

to the ones now

renewed were erroneous.,

Therefore,

both of the motions

to

dismiss made orally by Respondents Larry Bittle,

Leonard Bittle,

and William Gamber

at the February 17,

1986,

hearing are denied.

Liability of Respondent

3., Max Mitchell

The Agency and Mitchell differ

in their views of the

liability accruing

to Mitchell

as

a result of the carbon recovery

operation which was conducted on his property, the Peabody No.

18

site,

The Agency states that the standard to be applied

to

property owners and

lessors

is one of an affirmative duty to

control

or prevent environmental violations occurring on the

property,

if the owner or lessor

is

in a potential position

to

contr2l

the activities on the property (Complainant’s Closing

Brief’,

p.,

44, citing EPA

v., James McHugh Construction

Co.,, PCB

71—291,

4 PCB

511

(1972) and EPA

v., Thompson Oil

Compafly,

PCB 75—

475,

32 PCB 3

(1978)).

The Agency contends that the lease

agreement pertaining

to the carbç~recovery operation, and more

specifically paragraphs

6 and l6~ of that agreement, gave

Mitchell the ability

to control

the actions of the lessees (A~

Closing Brief,

p.,

45).,

8 These allegations were found

in Counts V and VI of the original

complaint in this case.,

~ Hereinafter

“A., Closing Brief”.,

10 Paragraph

6 required the lessees to comply with “all local,

County, State

and Federal Governmental Laws, Rules,

and

Regulations” during the carbon recovery operation; paragraph 16

reserved

to

the lessors the right to terminate the contract upon

the lessees’

failure

to,

inter

alia, “perform any of the

covenants”

of the contract.,

77-88

---

—6—

Mitchell admits that he was at all times during the period

in question owner of the Peabody #18

site.,

However, he raises

two arguments

in support of his position that all responsibility

for violations at the site should be imposed on the other

Respondents.,

First,

he argues that Board and Appellate Court

decisions are “less than clear concerning the standard

to be

applied

to an owner—lessor or whether

such a non—active

participant should be held çesponsible at all” (Brief of

Respondent

3., Max Mitchell1~at

18).,

Second, Mitchell disputes

the Agency’s assertion that he had the ability to control or

prevent environmental violations at the site

(Id.

at 18—19).,

An examination

of the case law relevant to the issue of

owner—lessor liability

is necessary in order

to respond to

Mitchell’s contentions.,

The Board has long held that the Act

imposes an affirmative duty on persons

in positions of potential

control to take action to prevent pollution.

Environmental

Protection Agency

v.

James McHugh Construction Company,

PCB

71—

291,

4 PCB 511,

513

(1972).

The Board has previously determined

that lessors have such

a duty

if they are in

a position to

control the activities occurring.

Environmental Protection

Agency

v. Thompson Oil Company, PCB 75—475,

32 PCB

3,

9 (1978).

The test used by the Board to determine liability in both of the

above—cited cases was one of reasonableness;

i.e.,,

that a person

is liable

if

it was reasonable

for him to have exercised control

in order

to prevent pollution.,

A determination using this

standard will necessarily be dependent upon the particular

circumstances of each individual of each individual case.

The requisite control which would impose liability on the

landowner does not automatically stem from

the lessor—lessee

relationship.

Ownership of land, used pursuant to

a lease,

is

alone not sufficient

to support the imposition of liability upon

the lessor

for actions of the lesse,

In Environmental Protection Agency v. Lake County Grading

Company,

PCB 81—11,

58 PCB

75

(1984),

the Board indicated,

in

dicta,

that lessor control, hence liability,

is not automatically

presumed from a lessor—lessee relationship.,

In that case, the

lessee—operator of

a sanitary landfill was found to have violated

numerous sections of the Act and regulations.

Although the

lessors of the site were

riot named as Respondents

in the case,

the Board stated tht the lessors were “merely the landowners who

lease the land

to

the

lessee

and

they

do not have any control

over the operations of

the

lessee

.“

Lake County Grading

Company at

77.,

Such

an aside

indicates that

a lessor does not

necessarily control

a lessee’s operations.

Therefore,

in order

to find the requisite control, the Board needs to look at the

particular relationship at issue.

11 Hereinafter

“M., Brief”.

77-89

---

—7—

The Illinois Appellate Courts have held that the

Environmental Protection Act

(Act)

is malum prohibitum

no proof

of guilty knowledge or mens rea

is necessary in order

to support

a finding of guilt.

Paul Hindman

v.,

Pollution Control Board, 42

Ill.,

App.,

3d 766,

769 (5th District 1976); Meadowlark Farms,

Inc.,

v,

Pollution Control Board,

17

Ill,

App.,

3d 851, 861

(5th

District 1974);

Bath,

Inc.

v. Pollution Control Board,

10 Ill.

App.,

3d 507

(4th District 1973)

In Bath,

the owner—lessor of a landfill had been found by

the

Board

in

violation

of

a

rule

concerning

the

burning

of

refuse,

The

petitioners

claimed

that

the

finding

of

violation

was an

error due

to the fact that the petitioners never caused or

intended the burning.,

The court,

in upholding the Board’s

finding,

stated that “it

is not an element of

a violation of

the rule that the burning was knowing

or intentional.

We hold

that knowledge,

intent,

or

scienter

is not an element of the case

to be established by the Environmental Protection Agency upon

the

issue of burning.,”

Bath,

294 N,E.,2d at 781.,

The reasoning

in Bath was also adopted by the Court

in

Hindman.

In that case,

Hindman, the petitioner, was an operator—

lessee of

a landfill.

He, too, was found

in violation of the Act

and rules concerning refuse burning.,

Hindman similarly claimed

that he did not cause nor intend

the fire and that as a

consequence, he did not violate the

Act.,

The court followed Bath

and affirmed the Board’s finding of violation.,

Citing Meadowlark

Farms,

the court stated,

“other authorities have adopted the Bath

standard and have concluded

that the Environmental Protection Act

is malurn prohibitum,

there being

no proof of guilty knowledge or

mens

rea necessary to support

a finding of guilty,”

Hindman 42

Ill.

App.,

3d at 769,

Meadowlark Farms concerned the violation of Section 12(a)

of

the Act due

to the discharge of contaminants into

a creek from

iron pyrite mining

refuse piles,

The petitioner, who owned the

land on which the piles were located, had been found

by the Board

in violation of the Act.,

The refuse piles were the result of

a

mining operation that had taken place on the land prior

to the

petitioner’s ownership.

The court affirmed the Board’s findings

that the petitioner had ownership of the surface rights of the

property which was the source of the violation,

that the evidence

showed that the pollution had its source on that property and

that fish were killed, and

that the petitioner had the capability

of controlling the pollutional discharge,

The court,

after

discussing Bath,

found that the same reasoning applied

to

Meadowlark Farms,

Inc.,,

i.e.,

“that knowledge

is not an element

of a violation of

12(a)

and lack of knowledge

is no defense.,”

Id., at 862.

The court consequently found the petitioner there

in

violation of Section

12(a)

of the Act and certain water pollution

regulations.,

77-90

---

—8—

Although knowledge of wrongdoing

is not necessary for

a

finding of violation of the Act,

it

is one factor which

the Board

may look

to

in order

to assess whether the lessor could have

reasonably exercised control over the lessee in order to prevent

pollution.,

Mitchell argues that the Board has not adopted

a clear

standard with regard

to the liability applicable to owner—

lessors.,

In support of his position, Mitchell cites three

cases.,

However,

these

cases do not refute the standard set forth

in James McHugh Construction Company and Thompson Oil Company.

The first case cited by Mitchell

is Environmental Protection

Agency v. City of Waukegan, PCB 71—298,

3 PCB

301

(1971), which

involved

an Agency enforcement action brought against multiple

parties as a result of the improper operation of

a landfill.

The

“owner”

of the facility

in question was

a bank, which held the

property as trustee

in

a land

trust.,

The Board

in that case held

that this kind of ownership, which does not entail decisionmaking

concerning

the use of the property, does not support the

imposition of liability for violations occurring on the

site.,

Waukegan at 304.

Such

a holding

is consistent with a control

based

standard.,

Mitchell

also relies on Environmental Protection Agency

v.

Wasteland,

Inc.,,

PCB 81—98,

48 PCB

1

(1982).,

In that case,

which

also involved violations stemming from the improper operation of

a landfill, the lessor of the site was fined $2,000 while

the

operator was fined $75,000.

The Wasteland decision does not

contradict the general

rule of lessor liability in those

instances where the lessor could have reasonably exercised

control

to prevent pollution.,

Rather, the case indicates that

where a lessor does not actively participate

in the violations

and only errs

in his inaction,

a differing standard may be

applied

to

him

in

the

assessment

of

a

penalty.

In addition, Mitchell cites Environmental Protection Agency

v.,

Lake County Grading Company,

PCB 81-11, 58 PCB

75

(1984),

which was discussed above.

In that case, the lessors of the site

were not named as

Respondents.,

In dicta,

the Board stated that

the lessors did not have any control

over the operations of the

lessee.

However,

such a statement does not necessarily preclude

the possibility that

in certain instances

a lessor may have

control

over

the

operations

of

the

lessee.

Having discussed the

standard applicable to

the issue of

to

lessor liability,

the Board can now turn to

the facts of the

instant case.

Essentially, the Board must determine

1) whether

Mitchell had control over the mine recovery operations

to the

extent that

he could have prevented violations of the Act and 2)

whether

it was reasonable

for him to exercise such control.,

77-91

---

—9---

The Agency claims

that two paragraphs of the lease give

Mitchell control over the operations,

to such a significant

extent, that he may be found

to have incurred liability in this

case.,

Paragraphs

6 and 16 of the lease agreement pertaining to

the site gave Mitchell the power

to immediately terminate the

lease

if the lessees failed to comply with all “local,

County,

State

and Federal Governmental Laws,

Rules, and Regulations...”

during operations at the site.

Such clauses in

a lease give the

lessor

a certain amount of control over the lessor—lessee

relationship.,

However, this control only manifests itself in the

termination of the lease, and the lease can be terminated by the

lessor only after the lessee has already violated laws or

regulations.

That

is,

these two clauses alone do not grant the

lessor control over the actions of the lessee prior to the

lessee’s wrongdoing.,

Other

than the use of coercion,

by

threatening to

terminate the lease, the lessor does not have the

power

to mold the lessee’s behavior according

to the lessor’s

wishes.,

Even threatening

to terminate the lease may not

influence

the actions of the lessee, particularly since

termination may involve court

action.,

Consequently, these two

clauses alone

are not sufficient for one

to conclude that the

lessor had the ability to prevent the lessee from causing

pollution.,

However, once Mitchell

knew that the operations were

violating the Act, he could have exercised his ability to

terminate the lease and take steps to prevent further violations

and correct current

ones.,

Mitchell’s control over the mining

operations was limited

to his ability to terminate the lease.,

According

to the provisions of the lease, he could only exercise

this control,

after

the lessees violated any “local,

county,

state and Federal Governmental

Laws, Rules and Regulations....”

It would certainly be unreasonable for him to exercise his

control

——

terminate the lease

——

prior to having any knowledge

that the lessees were violating

the

Act.,

On the other

hand,

it

is quite reasonable

to expect him to exercise control once he

knew or reasonably should have

known of the violations.,

In the instant matter,

Mitchell had no reason to believe the

lessees were initially operating

in violation of the Act,

The

Bittles had experience with this type of operation and the lease

specified that they were to obtain the necessary permits and

operate within the provisions of the environmental regulations.

He had no reason to suspect that the Bittles had not obtained the

required permits.,

In July of 1979, Agency officials requested

Mitchell

to provide information on the lease, and he informally

learned of the Attorney General’s suit over the alleged

violations of the

Act.,

At this point

in time,

a prudent man

would have begun looking into the situation.,

Operations at the

site terminated

in October

of 1979, and Mitchell should have

familiarized himself with the condition of the site and the

implications of

the conditions.

In July of 1982,

the Attorney

77-92

---

—10—

General

moved

to

include Mitchell as a party to its 1979 suit.

That same month

the circuit court dismissed the suit with

prejudice.,

Only then did Mitchell take action to cancel the

lease with the Bittle group

——

an action which was taken on

September 30,

1982.,

The lease was cancelled

in November of

1982.

Mitchell waited far too long to actively investigate the

conditions at the carbon recovery site.

After

the lease was

cancelled, Mitchell was

in sole possession of the site and

clearly knew that the Agency believed violations had occurred and

were continuing.,

He was capable of taking affirmative steps to

control

the problems at the site and should have done so.

The Board therefore concludes that it was reasonable

to have

expected Mitchell

to take action in this instance to prevent the

continuing violations.,

The record indicates that as early as

July 10,

1979,

Mitchell

had

reasons

to

expect

that

violations

were occurring on the site

(R. at 285—286).

In sum, the Board

finds that Mitchell shares responsibility for whatever violations

occurring

subsequent

to

July

10,

1979,

are

found

in

relation

to

the Peabody #18

site.,

Mitchell

also contends that,

for reasons of estoppel and

laches, the Agency should

“be estopped from asserting now matters

which could have been litigated

in 1979”

(M., Brief at 14).

Mitchell states that

it is “unfair”

to assert liability against

him “at such late date”, given the

Agency’s

unsuccessful

prosecution of the prior case against SR and Larry Bittle in the

Franklin County Circuit Court

(Id.,).,

The Agency,

in response, argues that “the equitable defenses

of laches, estoppel and waiver cannot be invoked in cases

involving public rights and the exercise of governmental

functions,

unless

extraordinary

circumstances

are

present”,

and

that

“(t)his

general

prohibition

of

equitable

defenses

becomes

absolute

in environmental cases which concern protection of

the

public

health

and

welfare”

(A.

Rebut.

Brief

at

24).

In

support

of

these

positions,

the

Agency

cites

People ex

rel., Scott

v.,

Chicago

Thoroughbred

Exterprises,

Inc.,

56

Ill.,

2d

210,

306

N.E., 2d

7

(1973)

and Tn—County Landfill

v, Pollution Control

Board,

41

Ill. App,

3d 249,

353

N.E.,

2d 316

(2nd Dist.,

1976).

The Board finds that the present action

is not unfairly

brought against Mitchell, and therefore finds that the issues of

laches and estoppel are inapplicable

to the case at

bar.,

The

Board need not, and therefore does not,

today address the more

general

issue of whether equitable defenses may be invoked

in

environmental cases involving public rights and the exercise of

governmental functions.

77-93

---

—11—

Liability of Larry Bittle, Leonard Bittle, and William Gamber

The

Agency

has

brought

action

in

this

matter

against

Larry

Bittle, Leonard Bittle and William Gamber as individuals, and not

in their capacities as officers and/or agents of

SR.,

SR,

in

fact, was never made a Respondent to this action.

The Agency

alleges

that

these

Respondents

are

liable

for

the

violations

at

the site because of their personal involvement in, and control

over,

the day to day activities of the carbon recovery operation

(A.,

Closing

Brief

at

40).

The

Agency

stresses

that

it

has

therefore not attempted

to “pierce the corporate veil”

in the

presentation of its case (Id.),

and contends that there can be no

reason to shield from civil liability corporate officers who are

personally

involved

in

or

directly

responsible

for

statutorily

proscribed

activity

(Id.,, citing United States v. Pollution

Abatement Services of Oswego,

Inc.,

763

F.,2d 133, 135

(2d Cm.,

1985).,

In support of this position, the Agency has shown the

following:

these three Respondents all signed the ~ase

agreement for

the site

in

their personal capacities

L

(R.

at 689,

A,

Ex.,

1 and 2), and similarly ~gned

the installment note

required

by

the

lease

agreement-~’

(R.,

at

712—713,

A., Ex.

2);

interest earned on the escrow account created by the lease

agreement was paid

to Larry Bittle individually and deposited

into his personal account

(R. at 715—716,

A,

Ex.,

3); William

Gamber took instructions from Larry Bittle

(R. at 861), ran the

day to day operations at the site

(R., at 849),

and was seen

operating earthmoving

equipment and thereby physically

participated

in the carbon recovery operation at the site

(Tr.,

1

at 40 and 45,

Tn.,

2 at 34); Larry Bittle, while trying

to be

at

the site “most

every day”

(R., at 733), appeared at the site

“a

couple of times

a week” and talked

to William Gamber

“pretty

close to every day” concerning the operations at the site

(R., at

860—861);

Larry

Bittle

also

authorized

construction

of

the

holding

ponds on the site

(R, at 746—747), later authorized

repair

work

done

to

the

berms

around

those

ponds

(747—748),

and

paid

for

these

repairs

out

of his personal funds

(R. at 749—751)

Respondents

Larry

Bittle,

Leonard

Bittle

and

William

Gamber

contend

that

they cannot be individually liable for any

violations at the Peabody No,

18 site because the site was

operated by SR,

a corporation which they allege was fully funded

and viable during the time the carbon recovery operation took

place

(R., at 1258 and 1264).

Moreover, they assert that in order

12 Larry Bittle also signed

this agreement in his capacity as

President of

S,R

13 No one signed this document as representative of SR~

77-94

---

—12—

to prove them individually liable, the Agency must “pierce the

corporate veil” but did not do so because SR was never made a

Respondent

to

this

action

(R.,

at

1265).

Finally,

they

argue

that

the Agency offered no proof that they are individually

responsible

for the violations committed

at the site

(R. at

1265).

The

Board

has

consistently

held

that

the

corporate

form

cannot shield

an individual from personal liability where he

participates

in activities at asite on a day to day basis.,

Environmental

Protection

Agency

v,

Minerals

Management

Corporation,

PCB

79—58,

37

PCB

521

(1980); Environmental

Protection

Agency

v.,

Collins

Improvement

Company,

Inc.,, PCB 75—

126,

19 PCB

221

(1975).

This approach is premised on the fact

that

individuals

fall

within the definition of “persons” as it

is

defined

in

Section

3

of

the

Act,

and

the

Act

proscribes

various

activities of persons which cause pollution.,

For the purpose of

establishing violations of the Act or regulations adopted

thereunder,

“(i)t makes no difference whether the person utilizes

an inanimate tool to cause pollution or

instructs his own

employees

or

the

employees

of

a

corporation

which

the

person

controls”.,

Minerals Management Corporation at

523.,

The Board

finds the Agency has convincingly shown that Larry

Bittle and William Gamber were intimately involved

in the

everyday

operations

of

the

site.

The

Board

will,

therefore,

hold

them individually liable

for whatever violations may be found to

stem from the carbon recovery operation.

Regarding Leonard

Bittle, while he was

in a position to influence the course of

events, his involvement was peripheral.

The Board notes that he

had no “hands on” role

in the operation of the site

(R., at 831),

was occasionally consulted on big decisionns, and only visited

the site during the first week of operations and once

thereafter.,

(R.,

at 735,

831, 832, 836, 837).

While Leonard Bittle might not have actually caused the

violations,

he did allow them.

For

these reasons, the Board on

balance concludes that Leonard Bittle may be held

in violation.,

However, due

to the limited nature of his involvement in relation

to the other partners he will not be held liable for any costs of

site

cleanup

or

penalty.,

Motion

to Amend Complaint

On June

23, 1986,

the Agency filed

a motion to amend

its

First Amended Complaint for

the stated purpose of “encompass(ing)

evidence of violations continuing since

the filing of the First

Amended

Complaint, and

to thereby conform

to the proof presented

at

trial”.,

Certain

of

the

testimony

presented

by

the

Agency

at

hearing consisted of observations made by Agency inspectors

during visits

to, and flights over, the site subsequent

to the

filing

of the Complaint.

77.95

---

—13—

Within the same June

23, 1986, motions, the Agency also

requests the Board to allow amendment of the First Amended

Complaint by interlineation,

in order

to change

a date found

in

Count

III

from

“March

21,

1981”

to

“March

12,

1981”.

Larry Bittle, Leonard Bittle, and William Gamber objected,

on July 21,

1986,

to that portion of the motion which seeks

to

amend the complaint

in order

to reflect continuing violations.,

They argue that the process of amending coInpI~intsis controlled

by Ill.

Rev.,

Stat,

ch.,

110, par.

2—618

(sic)

‘~,

and that the

section allows

a complainant “on just and reasonable

terms” to

amend

a complaint,

They contend that the proposed amendment here

is not just and reasonable because they “have no way of answering

the proposed amendment

to the Complaint inasmuch no specific

times, dates, or violations are alleged” and also because they

were

prejudiced

and

surprised

by

the

introduction,

at

hearing

of

evidence not covered by the pleadings,

3., Max, Mitchell also objects

to the Agency’s motion

to

amend

for the purpose of reflecting continuing violations.

Mitchell

so objected within his brief filed on October

9,

1986.

Mitchell believes that Section 103.210

of the Board’s Procedural

Rules controls where

the Agency’s motion should be granted.,

Section 103.210 reads

in full

as follows:

Section 103.210

Amendment and Variance

a.

Proof may depart from pleadings and pleadings

may be amended

to conform to proof,

so long

as

no undue surprise results that cannot be

remedied by a continuance,

b.

At any time prior

to commencement of hearing

and prior

to the close

of hearing, the Hearing

Officer may upon motion of a party permit

a

supplemental

pleading

setting

forth

continuing

transactions or occurrences which have

continued

or occurred subsequent to the date

of the filing of the initial pleading or any

amendment thereto, so long as no undue

surprise results that cannot be remedied by a

continuance.,

Mitchell

states that the amendment cannot be allowed

pursuant to Section 103.210, since the motion was made two months

after

the close

of hearing and also because no supplemental

pleading was filed.

Mitchell further argues that

it would be

14 The section dealing with the process of amending complaints

is

actually Ill.

Rev.,

Stat.,

ch.,

110, par.

2—616.

77-96

---

—14—

inappropriate to allow the amendment because of its “fundamental

unfairness”

to the Respondents,

The

Agency

states

that

the

only

reason

it

presented

evidence

of continuing violations was

for the purpose of demonstrating

that the threat of water pollution continues to

increase with the

passage of time,

and not to c~imor suggest any new violations

(Complainant’s Rebuttal Brief

at 10).

The Agency’s position is

that this evidence reflects continuing violations

of Section

12(a)

of the Act (Id.).

The Agency argues

that, where necessary,

its amended

complaint actually alleges continuing violations beyond the date

of

its

filing.,

Nevertheless, the Agency says

it filed

its motion

to amend “in an attempt to silence the Respondents’ claims that

the Complaint should be amended”

(Id.).,

The Board

finds that no undue surprise should result from

allowing the Agency to amend

its complaint in the manner

requested, and so therefore grants the Agency’s June

23,

1986,

motion to amend complaint.

It

is intuitive that violations of

Section 12(a) could continue at the site

to this day,

since no

action has been taken

there to abate

the threat of water

pollution from the large volume of acidic water stored in the

ponds there,

As the proof presented at hearing, as well as the

motion

to amend, pertain only to continuing 12(a) violations,

neither can be found

to have surprised the Respondents.,

Moreover,

35

Ill.,

Adm.,

Code 103—210

allows proof to depart

from pleadings, and for pleadings

to be amended

to conform to

proof,

so long as no undue surprise results that cannot be

remedied by a continuance,

Respondents did not at any time ask

for

a continuance of this matter,

Additionally, the Agency’s

intention to present evidence of violations occurring after the

filing of the complaint first became apparent at the February 20,

1986, hearing held

in this docket

(R., at 464—467).

Respondents

had, therefore,

adequate opportunity

to present evidence

in

rebuttal to allegations of continuing violations since additional

days of hearing took place on April

1,

2,

and 3,

1986.,

Respondents did not request an additional day of hearing

for the

purpose of submitting rebuttal testimony either,

As

a consequence of granting the motion

to amend,

the Board

need not address the Agency’s allegation that by its express

language the Agency’s First Amended Complaint alleges continuing

violations.

The Board also notes that that portion of the June

23,

1986,

motion

to

amend

requesting

amendment

by

interlineation

is granted.

15

Hereinafater

“A.

Rebut,

Brief”.,

77-97

---

—15—

Admissibility of Agency Reports

At hearing, all

of the Respondents repeatedly objected to

the

introduction

into

evidence

of

Agency

inspection

and

laboratory

analysis

reports

concerning

the

site

(see, for

example,

R.,

at 84—87,

109—110, 115—118).

Respondents

argued

there that the inspection reports should not be admitted as

business records,

and that the laboratory analysis reports should

likewise

be

excluded

from

the record because they are also not

business records,

as well as because no foundation was laid

for

their admission and

no tes~monyregarding the chain of custody

of the samples was offered

~,

Respondent Mitchell later admitted that the Agency’s

laboratory

procedures

were

“adequate”

to

conduct the tests that

were performed

CR.,

at 561),

and that the Agency reports are

admissible as business records

(M.,

Brief,

p.,

18).

The Board notes,

for the sake of addressing any continuing

objections to the admissibility of these reports, that Agency

inspection and laboratory analysis reports are certainly

admissible

in cases before

the Board.,

This is specifically

established by 35

Ill., Adm. Code 103,208, and more generally by

35 Ill, Adm,

Code 103.204(a),

These sections read as follows:

Section 103.208

Admission of Business Records

in Evidence

Any writing

or record,

whether

in the form of any

entry in

a book or otherwise made as a memorandum

or

record of any act, transaction, occurrence,

or

event, shall

be admissible as evidence of the act,

transaction, occurrence,

or event,

To be

admissible the writing or record shall

have been

made in the regular course of any business,

provided

it was the regular course of the business

to make such

a memorandum or

record

at the time of

such an act, transaction, occurrence, or event or

within

a reasonable time thereafter.,

All other

circumstances of the making

of the writing or

record,

including lack of personal knowledge by

the entrant or maker, may be shown

to affect its

weight,

but shall not affect its admissibility.,

The term “business”, as used

in this rule,

16 Roy Frazier, Laboratory Manager of the Agency’s Champaign,

Illinois,

laboratory,

later

testified

at

hearing

regarding,

inter

alia,

the chain of custody procedures used by the Agency and

the

validity of the

test results achieved by the Agency

(R. at 530—

609).

77-98

---

—16—

includes business, profession, occupation, and

calling of every

kind.,

Section 103.204

Admissible Evidence

a)

The

Hearing

Officer

shall

receive

evidence

which

is admissible under the rules of

evidence

as

applied

in

the

Courts

of

Illinois

pertaining

to civil actions except as these

rules otherwise provide,

The Hearing Officer

may receive evidence which is material,

relevant, and would be relied upon by

reasonably

prudent

persons

in the conduct of

serious affairs

provided that the rules

relating

to privileged communications and

privileged topics shall be observed.

Moreover, the practice of characterizing Agency reports as

“business records”

and admitting them into the record of a Board

proceeding on that basis has been previously upheld.

City of

Highland

v.

Pollution Control Board,

66

Ill. App.

3d 143, 383

N.E.,

2d 692 (5th

Dist,

1978),

The

inspection

reports

and

laboratory analyses offered by the Agency were therefore

correctly

admitted

into

evidence

by

the

Hearing

Officer,

VIOLATIONS ALLEGED AND BOARD FINDINGS

Count

I

Count

I of the Agency’s First Amended Complaint alleges that

Larry Bittle, Leonard Bittle, and William Gamber caused or

allowed the deepening of the slurry pond and the construction of

a sedimentation p1t~dand two holding ponds

at the site (First

Amended

Complaint

‘,

p.,

3),

and that these activities have

brought about the threat of water pollution in violation of

Section

12(a)

of the Act

(F.

Amen, Complaint,

p.,

9).,

The Agency

also

alleges,

in

Count

I,

that

3.,

Max Mitchell

is similarly

responsible

for

the

alleged

Section

12(a)

violation

due

to his

status as owner

of the site

(Id,).

The sedimentation pond and the two holding ponds which

presently exist on the site were built after the carbon recovery

process was initiated.

Agency inspectors

first observed the

ponds on October

22,

1979

(Tr.,

2 at 69—71).

Joseph Wesselman, an

17 Hereinafter

referred

to as

“F.

Amen.,

Complaint”,

77-99

---

—17—

Agency inspector during the period

in question18 who visited the

site

on that date,

testified that he had not given anyone at the

site permission to construct the ponds, and that in fact he

indicated to the site personnel at that time that any

construction of ponds would require Agency permits prior

to their

being built

(Id., at

72—73).

The ponds were allegedly built in response

to

a cease and

desist order issued against SR by the Office of Surface Mining

(R.

at 238).

The order was ostensibly intended

to bring about

action

to alleviate the run—off of acidic water

from the areas at

the site which had been disturbed during the carbon recovery

operation,

The two holding ponds were built

in the natural

drainage way of the slurry pond;

the southernmost holding pond

receives flow from the slurry pond, and discharges intermittently

into

the

northernmost

holding

pond

(F. Amen., Complaint,

p.

3).,

The northernmost holding pond discharges into an unnamed

tributary to

the Middle Fork of

the Big Muddy River, which

in

turn discharges to the Middle Fork of the Big Muddy River

approximately one mile from the northernmost holding

pond.,

(Id.).,

The Agency asserts that this two pond “treatment system”

seriously worsened the threat of environmental harm resulting

from the activities at the site,

in that it caused an enormous

volume

of

water

to

accumulate

and

become

even

more

acidic

than

it

originally was

(A., Closing Brief,

p.,

14).

No discharge point was

ever constructed

for either of the holding ponds

(Tr.,

1 at 91—

92),

Thus,

water

will

accumulate

in

the

ponds

until

they

overflow their berms at the points of lowest elevation

(Id.,

at

91).

The Agency contends that during all other times the fact

that

the

water

in

the

ponds

had

no

outlet

caused

it

to become

more acidic

(Tr.,

2 at 82).

The Agency explains that as the water

remains

in contact with

the pyritic material

(within the coal

refuse), oxidation occurs which breaks down the pyritic material

into

various

compounds

including acids, thereby making the water

more acidic

(Tr.

1 at 86—87).,

The Agency further states that as

evaporation occurs

in the ponds, the concentration of the water’s

acidity increases

(Tr,

2 at 82—83), and that the elevated acidity

increases the likelihood of berm erosion and subsequent failure

of the containment structures

(Tr,

1 at 101—102).,

Specifically,

the Agency says the

increased acidity promotes erosion by killing

any vegetation growing around the pond(s), and also by breaking

down organic material

in the berms and thereby destabilizing

them

(Id,)

18

Mr., Wesselrnan

is presently an environmental engineer for Old

Ben Coal Company.,

77-100

---

—18--

At hearing the Agency submitted as exhibits numerous reports

detailing the findings from the many water samples which were

taken

at

the

site.

Samples

were

taken

of,

inter

alia,

water

from

each of ~e

two holding ponds.,

The results of the pond

sampling

are as shown below:

Southernmost

Holding

Pond

Iron

ROE

TDS/EC2°

Alkalinity

Acidity

(mg/l)

(mg/i)

(mg/i)

(mg/i)

(mg/i)

12/3/80

665

8,080

3,700

2.3

0

5,200

3/12/81

677

10,230

3,500

2.5

0

5,200

8/29/83

820

13,967

——

2.4

10

8,100

Northernmost Holding Pond

Iron

ROE

TDS/EC

Alkalinity

Acidity

(mg/i)

(mg/I)

(mg/i)

(mg/i)

(mg/i)

3/4/80

760

9,200

3,000

2.8

0

4,600

4/8/80

5,500

7,500

2,700

2.8

0

3,300

4/16/80

820

6,340

2,800

2.8

0

3,900

6/19/80

510

7,740

3,300

2,6

0

4,000

12/3/80

470

7,510

3,700

2.3

0

4,900

12/11/80

455

9,440

3,700

2.5

0

4,600

3/12/81

548

9,310

3,400

2.,5

0

4,800

5/14/81

400

6,940

2,500

2.5

0

3,600

5/19/81

——

3,340

1,750

2,7

0

1,800

1/6/82

225

4,030

2,290

2.5

10

2,900

1/25/83

190

——

——

3.0

10

1,680

8/29/83

280

6,393

—--

2.3

10

3,700

3/12/84

330

—--

——

2,9

10

2,500

3/27/84

250

——

——

2,9

10

2,000

2/4/86

——

——

—---

2.7

0

4,200

19 These results are drawn from

A., Ex.

23,

24,

26,

30,

33,

34,

36,

38—40,

43(a)

and

(b),

45,

and

46(a)

and

(b).

20 The Board will refer

to this parameter

as “TDS”.

The Agency

reports refer

to

it as both “TDS” and “TS”.

The Board further

notes that this manner of expressing

the level

of total dissolved

solids was derived through the use of the electrical conductivity

(hence

“EC”)

method.,

77-101

---

—19--

The Board’s water quality and effluent standards for these

parameters are as follows:

Iron

ROE

TDS

Alkalinity

Acidity

(mg/i)

(mg/i)

(mg/i)

(mg/I)

(mg/l)

Water

Quality

1.0

1,000

6.5—9.,0

Effluent

2.0

——

6,0—9.0

Count

I,

as paraphrased above, alleges that Respondents’

activities at the site have brought about the threat of water

pollution

in violation of Section 12(a)

of the Act,

Section

12(a)

states:

No person shall:

cause or threaten or allow the discharge of any

contaminants into the environment

in any State

so as

to cause

or tend to cause water pollution

in

Illinois, either alone or in combination with matter

from

other

sources,

or

so

as to violate regulations

or

standards adopted by the Pollution Control Board

under

this Act.

Section 3(d)

of the Act defines “contaminant” as:

any solid,

liquid,

or gaseous matter, any odor,

or

any form

o’f energy, from whatever source,

Section 3(nn)

of the Act defines “water pollution”

as:

such

alteration of the physical,

thermal, chemical,

biological

or

radioactive

properties

of

any

waters

of

the State,

or such discharge of any contaminant into

any waters of the State, as will or

is likely to

create

a nuisance or render such waters harmful

or

detrimental or

injurious to public health,

safety or

welfare,

or

to domestic, commercial,

industrial,

agricultural, recreational, or other legitimate uses,

or

to livestock, wild animals,

birds,

fish, or other

aquatic

life.,

Since the water

in the holding ponds certainly meets the

broad definition of “contaminant” as that term is defined

in the

Act, the Board’s determination of whether

a Section 12(a)

violation exists in this instance turns on the question of

whether the discharge of water

from the ponds can be

characterized as water

pollution.,

An examination

is therefore

necessary of those materials in the record which pertain to the

77-102

---

—20—

existing and projected environmental impacts resulting from

discharges from the ponds.

Testimony

regarding

environmental

impact

was

presented

at

hearing

by

two

witnesses:

Robert

Hite,

Supervisor of the

Agency’s

Marion

Monitoring

Subunit,

and

Dr., Martin Kelly, who

is

also employed by the Agency at that Marion office.,

Mr. Bite testified that as the pH of

a body of water drops

below

6.0,

observable

impacts

occur.

He stated that at a pH

level

of

5.5,

there

will

be

a

decrease

in

both

the number of fish

species and the population within each species that will be able

to survive

(R.

at 633), and that at

a pH of 5.0 the

fishery

will

be

drastically

reduced

if

not

eliminated

(R.,

at

634),

Mr.,

Hite

added

that

virtually

no

snails

or

leaches

can

survive

a

pH

of

below

5,7,

and

that

below

a

pH

of

4.5

most

crustaceans

will

perish

(Id,)

.

Finally,

he

noted

that

almost

no aquatic organisms

can live

in waters having pH of below 3.0, with the exception of

one form of tolerant midge

(R., at 635).

Mr. Bite theorizes that

if half of the estimated twelve

million gallons of water held

in the slurry pond and both holding

ponds was discharged within a brief period of time during low

flow conditions,

a “massive” fish kill would result

in the Middle

Fork

of

the

Big

Muddy

CR.

at

645).

He says the flow conditions

in the Middle Fork are “slow and pondent” due

to the low gradient

of the area

(R. at 638)

,

This

characteristic

decreases

the

buffering capacity of the stream, and under

this scenario would

result,

according

to

Mr.

Bite,

in the slug of acidic water moving

very

slowly

and

dispersing very gradually in the Middle Fork

(R.

at

644).,

He predicts that the pH of the Middle Fork would drop

to levels of 3.5

to 5.0 for

as far

as three miles downstream of

the point where

the unnamed tributary joins the Middle Fork

(R.

at 645).

Mr. Bite admits, however, that

if

a discharge

consisting of half of the water

in the ponds occurred when the

Middle Fork was at flood

stage,

the stream would suffer

“very

little,

if any” adverse impact

(R, at

659)

Mr. Bite’s testimony included discussion of

a major fish

kill which occurred on the Middle Fork in 1973.

That incident

was apparently caused by a discharge from another mine site,

during low flow conditions,

of water similar

in character

to that

at issue

in this case.

Mr., Bite, who personally observed the

affected reach of the Middle Fork some six weeks after the

discharge,

recalled that thousands of fish perished and that he

observed pH levels in the Middle Fork of 4,0 to 4.5

for several

miles downstearn from the point of impact

(R.

at 646—647),

Dr. Martin Kelly presented testimony at hearing regarding

the results of

a biological survey he conducted on the Middle

Fork of the Big Muddy on June 7,

1984

(R. at 806; see A.

Ex,

A—

8).

The intent of the study was to document,

if possible,

the

77-103

---

—21—

consequences of any drainage from (the Peabody No,

18)

area

on

the receiving stream by looking at the macroinvertebrates in the

stream

(Id,),

However,

Dr., Kelly was not able,

through the

mechanism of this study,

to ascribe any affects to the Middle

Fork

from

drainage

emanating

from the site because

the unnamed

tributary

extending

from

the

northernmost

pond

to

the

Middle

Fork

was largely dry at the time the study was conducted(R.,

at 810).

Dr. Kelly did note that he could not rule out the

possibility that discharges from the ponds regularly impact the

Middle Fork,

He stated that the potential for adverse impact

present due to

the poor water quality of the ponds

(R.

at 817)

On the date of his study

Dr.,

Kelly observed that the unnamed

tributary did hold water

in several pooled areas, though, so

it

was

to one of these

areas that

Dr.,

Kelly directed his work

(Id~)

.

Sampling he conducted on the largest such pool showed

only one organism living

in association with the bottom, that

being chironomids

(R,

at 811).,

Dr., Kelly noted

that chironomids

are known to be tolerant of polluted conditions, and are often

associated with mine discharge

(R,

at 8i1—8l2).

He added that

although under pooled conditions one would generally not expect

to find

too many organisms because water quality decreases, he

nevertheless would have expected

to find worms and other

organisms,

as well

as chironornids,

in this pool

(R. at 812).,

On the basis of the aforementioned testimony, the Board

is

persuaded that discharges from the ponds would “cause or tend to

cause water

pollution...,” as

is prohibited by Section 12(a)

of

the Act,

The Board now turns to the remaining question

to be

determined

in relation to Count

I, that being whether

Respondents’

activities have “cause(d)

or

threaten(ed) or

allow(ed).,.,”

the discharge of water from the ponds.,

Agency inspectors have documented, on occasions too frequent

to completely recount here,

the existence of breaches

in the

ponds causing

the discharge of water from them (see,

for example,

Tr,

2 at 23, Tr.

2 at 54,

Tr.

2 at 59—60,

Tr.,

2 at 83,

R.,

at

13).,

Moreover, the Agency contends that the breaches

in the

ponds cause them to deteriorate further and lose their structural

stability

(A.

Closing Brief,

p.,

16; Tr.

2 at 94), making it

21 The Board

notes that adverse

impact to the Middle Fork

stemming from discharges from the site has been documented,

Joseph Wesselman testified that he observed coal fine material on

the banks of the Middle Fork at the mouth of the unnamed

tributary,

He suggested that deposition of this material would

negatively

effect

both

the

vegetation

and

rnacroinvertebrate

communities that reside along

the banks of the Middle Fork

(R.

at

213)

77-104

---

—22—

inevitable that they fail and release their

contents completely

CA.,

Closing Brief

at

16).

The Board

finds that the activities of Larry Bittle d/b/a

Southern Recycling, William Gamber, and

3,

Max

Mitchell

in this

matter have caused, allowed, and presently threaten the discharge

of contaminants into the environment in violation of Section

12(a)

of the Act,

In reaching this conclusion, the Board has

taken into consideration the factors enumerated

in Section 33(c)

of the

Act.,

The Board has also considered the fact that the

ponds have apparently not yet failed, even though operations

ceased at the site more than seven years ago.

This notwith-

standing,

it has been shown not only that discharges

from the

ponds have occurred, but also that the potential release of the

large volume of water stored

in the ponds threatens the

environmental

integrity

of

the

Middle

Fork of the Big Muddy.

The

existence of a Section 12(a) violation

in this case is therefore

supported by both actual

and threatened discharge.

Count

II

Count

II alleges that all of the Respondents caused or

allowed discharges from the slurry pond on June

27 and July 10,

1979;

from the northernmost holding pond on April

8 and 16,

1980;

and from the southeast corner of the site on July 12 and October

22,

1979,

to enter waters of the state

in violation of Rules

601(a)

and 606(b)

of the Board’s Rules and Regulations, Chapter

4:

Mine Related Pollution, and that this thereby violated

Section 12(a)

of the

Act.,

The Board notes that its Rules and

Regulations no’ionger

exist

in that format, due

to codification

which became effective on August 21,

1981.

Additionally, both

Rules 601(a)

(now

contained

in

Section

406.101)

and

606(b)

(now

contained in

Section 406,106) have been substantively amended

subsequent

to

the time of codification.,

However, the Board

believes it appropriate

to adjudicate the allegations under the

law which existed during

the period

in question,

Therefore, the

Board

will

apply

the

standards

of

Rules

601(a)

and

606(b)

in

this

instance.

The

Agency

contends

that

on

June

27 and July 10,

1979,

effluent

was

discharged

from

the slurry pond

to the unnamed

tributary

of

the

Middle

Fork,

in

violation

of

Rules

601(a)

and

606(b)

and hence in violation of Section 12(a)

of the

Act.,

Joseph Wesselman testified that on June

26 he observed seepage

coming from beneath

a culvert that had been installed in the

north wall of

the slurry pond

CR. at 22—23), and that on July 10

he saw discharge from the same area, though the culvert had by

that time been removed

(R.,

at 40—41),

77-105

---

—23—

The results of samp~sof the slurry pond discharge taken by

Mr. Wesselman

on

June

27

‘

and July 10,

1979,

are found in A,

Ex.,

9(a),

9(c),

and

12(a),

and

are

as

follows:

Iron

Alkalinity

Acidity

(mg/i)

(mg/i)

(mg/i)

6/27/79

4,000

2.5

0

26,200

7/10/79

2,344

2.,6

0

21,700

The Agency also asserts that Rules

601(a)

and 606(b) were

violated as a consequence of discharges from the northernmost

holding

pond

to

the

unnamed

tributary

to

the

Middle

Fork

on

April

8

and April

16,

1980, which were allegedly caused

or allowed by

the Respondents.,

Mr., Wesselman testified that on April

8,

1980,

he observed

a breach

in, and concomitant discharge through, the

eastern levee

of the northernmost pond

(Tr.,

2 at 83—86).

Mr.

Wesselman also testified that he observed

a discharge from the

same area during an April 16,

1980, site visit

(Tr.,

2 at 89—94)

The results of samples taken by Mr. Wesselman of the

discharge

flowing through the breach

in the eastern levee of the

northernmost pond on April

8

and April

16, 1980, are found

in

A.

Ex,

24 and 26 and are as follows:

Iron

Alkalinity

Acidity

(mg/i)

(mg/i)

(mg/i)

4/8/80

5,500

2,8

0

3,300

4/16/80

820

2,8

0

3,900

The

final assertion of the Agency

in Count

II

is that

the

Respondents caused

or

allowed

runoff from the southeast corner of

the site to enter

a County ditch and thence

art unnamed tributary

to Ewing

Creek, both waters of the state, in violation of Rules

601(a)

and 606(b)

and hence

in violation of Section 12(a)

of the

Act,

Mr~Wesselman testified at hearing that he observed flow

from the site in the ditch on July 12 and

October

22,

1979

(Tr,

2

at 47—51 and

69—75).,

22

Mr. Wesselman did not take any water samples during his June

26,

1979,

site visit.,

Rather, he returned the following day for

that purpose

(Tr.

2 at

27),

77-106

---

—24—

The results or samples taken by

Mr., Wesselman on July i2 and

October 22,

1979, of the runoff from the southeast corner of the

site

are

found

in

A,

Ex.

13

and

21

and

are

as

follows:

Iron

Alkalinity

Acidity

(mg/i)

(mg/i)

(mg/i)

7/12/79

16.75

3.6

0

870

10/22/79

86

3.,8

0

180

Rule

601(a)

stated

in

pertinent

part

that:

“Compliance with the aforestated Regulations

notwithstanding,

any

operator of a mined or mine

refuse area shall comply with the effluent

standards of

Sec.,

606(a)

hereunder,

with respect

to all natural

or man—made discharges,

including

land run—off,

from said

area.,

Said discharge

sources shall include, but are not limited to,

mechanical pumpages, pit overflows,

spillways,

drainage

ditches,

seepage

from

a mined

or mine

refuse area, sewage works, outfails and other

effluent discharge pipes or

sewers...,”

Rule 606(b)

stated

in pertinent part that:

The

following levels of contaminants shall not be exceecec:

Acid

(total acid shall not

exceed

total alkalinity)

Iron

(total)

7

mg/liter

pH

range 5—10

not

subject to

averaging

Total suspended solids

50 mg/liter

(to be met only

when treatment facilities are

otherwise provided

to meet the

above contaminant levels),

The Board

finds

that as a consequence of their

activities in

this matter, Larry Bittie d/b/a Southern Recycling, William

Gamber, and

3., Max Mitchell caused or

allowed

the above mentioned

discharges to occur,

and that these discharges violated Rules

601(a)

and 606(b)

as the levels of Acid,

Iron (total), pH,

and

Total Suspended Solids exceeded the limitations

for these

parameters prescribed by Rule 606(b)

.

The Board therefore finds

that these Respondents violated Rules

601(a)

and 606(b)

of former

Chapter

4

and Section

12(a)

of the Act.,

77.107

---

—25—

Count

III

Count

III alleges that all of the Respondents caused or

allowed

discharges

from

the

northernmost

holding

pond

on

seven

occasions

between

December

3,

1980

and

January

25,

1983,

and

from

the sedimentation pond on December

3,

1980, May 14, 1980,

and

January 6,

1982,

to enter waters of the state

in violation of

35

Ill,

Adm.,

Code

406.106(b)

and

Section

12(a)

of the Act.

The

Agency

asserts

that

on

seven

occasions,

effluent

was

discharged

from

the northernmost holding pond

to the unnamed

tributary to the Middle Fork,

in violation of Sections 406,106(b)

of the Board’s mine related water pollution regulations and 12(a)

of the Act.

Joseph Wesseiman testified that on December

3 and

ii,

1980, March 12, May 14 and 19,

1981,

and January

6,

1982,

he

observed

the

discharge

of

effluent

through

the

breach

in

the

eastern

levee

of

the

northernmost

holding

pond

(R.

at

13,

21—22,

37—39,

51,

59, and

68).,

Mr. Gary Minton,

an Agency inspector,

testified

that

he

observed discharge from this breach during

a

visit

to the site on January 25,

1983

(R,

at

418).,

Samples of this discharge taken by Messrs. Wesselman and

Minton on the dates of the aforementioned observations are found

in A.

Ex,

33, 34,

36,

38, 39, 40,

43(a),

and (b), and provide the

following

data:

TSS

Iron

Alkalinity

Acidity

(mg/i)

mg/l)

(mg/i)

(mg/i)

12/3/80

470

2,3

0

4,900

12/11/80

40

455

2.5

0

4,600

3/12/81

50

548

2.5

0

4,800

5/14/81

100

400

2.5

0

3,600

5/19/81

—--

2,7

0

1,800

1/6/82

225

2.5

10

2,900

1/25/83

190

3.0

10

1,680

The Agency also states that Section 406.106(b)

and hence

Section 12(a)

of the Act were violated by discharges, allegedly

caused

or allowed by the Respondents, of effluent from the

sedimentation

pond

at

the

site,

which

flowed

into

a

County

ditch

and

then

to

an

unnamed

tributary

of

Ewing

Creek,

all waters of

the State.

~.

Wesselman testified that on December

3,

1980, and

May 14, 1981

,

he observed such discharge from the sedimentation

23 The Agency’s first amended complaint lists this date as May

14,

1980,

but it

is obvious from the evidence

presented that

the

Agency intended

it

to be May 14,

1981.

77-108

---

—26—

pond

(R~ at

13,

51)24.,

Mr., Wesselman took samples of this

discharge,

and the results, which are contained

in

A.,

Ex.,

33 and

38,

are

as

follows:

TSS

Iron

Alkalinity

Acidity

(mg/i)

(mg/i)

(mg/i)

(mg/i)

12/3/80

265

2.4

0

1,400

5/14/81

48

125

2.6

0

940

Section 406.106(b) states

in pertinent part that:

Constituent

STORET Number

Concentration

Acidity

00435

(total

acidity

shall not exceed

total alkalinity)

Iron

01045

3.5 mg/i

pH

00400

(range 6—9)

not

subject to

averaging

Total Suspended

00530

3.5 mg/i

Solids

The Board finds that as

a consequence of their activities

in

this

matter,

Larry

Bittle

d/b/a

Southern

Recycling,

William

Camber, and 3. Max Mitchell caused

or

allowed the above mentioned

discharges to occur,

and that these discharges violated Section

406.106(b)

as the levels of Acidity, Iron

(total), pH,

and Total

Suspended Solids exceeded the limitations established

for these

parameters by Section 406.106(b).,

The Board

therefore finds that

these Respondents violated Section 406.106(b)

of the Board’s mine

related water

pollution regulations, as well

as Section 12(a)

of

the

Act.,

Count

IV

Count

IV alleges that all of the Respondents caused

or

allowed discharges from the northernmost holding pond to the

unnamed tributary to the Middle Fork, which caused the unnamed

tributary to contain levels of chemical constituents

in excess of

24 Count

III of the Agency’s first amended complaint alleges that

a discharge from the sedimentation pond occurred on January

6,

1982,

However, no testimony to this effect was presented at

hearing, and Mr. Wesselman’s report of the inspection he

conducted on

that date mentions no such discharge.

77-109

---

—27—

the limitations established for those constituents

by 35

Ill.,

Adm. Code 302.201, 302.204, and 302.208,

Count

IV further

alleges

that

because

these

sections

were

violated,

35

Ill,

Adm.,

Code 406,105 and Section 12(a)

of the Act were also violated.,

35

Ill.,

Adrn.,

Code 406,10525 provided,

in pertinent part:

In

addition

to

the

other

requirements

of

this

part,

no

mine

discharge

or

nonpoint

source

mine

discharge

shall,

alone

or

in

combination

with

other sources, cause

a violation of any water

quality standards of Subtitle

C,

Chapter

1 Water

Pollution.

35 Iii.

Adm, Code 302.201 and 302.204 state

in full as

follows:

Section 302.201

Scope and Applicability

Subpart B contains general

use water quality

standards which must be met in waters of the State

for which there

is no specific designation.

Section 302.204

pH

pH shall be within the range

of 6.5 to 9,0 except for

natural causes.

35

Ill, Adm, Code 302,208 provides

in pertinent part that:

The following levels of chemical constituents

shall not be exceeded:

Constituent

Concentration

(mg/i)

*

*

*

*

*

Iron (total)

1,0

*

*

*

*

*

Manganese

1.0

*

*

*

*

*

Sulfate

500.,0

*

*

*

*

*

Total Dissolved Solids

1000.0

25 This section was renumbered

to Section 406.202 and amended at

8

Ill.

Reg.

i3239, effective July

16,

1984.,

Since

the alleged

violations of this section occurred prior

to the effective date

of Section 406.202,

the Board

finds

it appropriate

to evaluate

the conduct in question

in light

of the requirements of Section

406.105.

77-110

---

—28--

The Agency contends that on December

11,

1980, and March 12

and

May

14

and

19,

1981,

effluent

was

discharged

from

the

northernmost

holding

pond

to

the

unnamed

tributary

of

the

Middle

Fork.,

Joseph

Wesselman

testified

that

on

those

dates,

he

observed discharges from the breach

in the northernmost holding

pond

to

the

unnamed

tributary

to the Middle Fork

(R.

at 21—22,

24,

51, and 59),

During site inspections on those dates,

Mr.,

Wesseiman collected water samples from the unnamed tributary to

the

Middle

Fork,

at

a

point

approximately

one—quarter

mile

downstream

from

the

breach

in

the

northernmost

holding

pond.

The

data derived from this sampling

is compiled

in

A.,

Ex,

34,

36,

38,

and

39,

and

consists

in

part

of

the

following:

Iron

ROE

TDS/EC

Manganese

Sulfate

(mg/l)

Jmg/l)

(mg/i)

pjj

mg/i)

(mg/i)

12/11/80

455

9,080

3,600

2,6

40

6,100

3/12/81

439

8,640

3,300

2,6

43.2

5,250

5/14/81

375

6,315

2,800

2,6

28

3,850

5/19/81

———

3,260

1,800

2.7

——

2,300

The

Board

finds

that

as

a

consequence

of

their

activities

in

this

matter,

Larry

Bittle d/b/a Southern Recycling, William

Camber,

and

3.,

Max Mitchell caused

or allowed the aforementioned

discharge to occur, and that these discharges were in violation

of Sections 302.204,

302.208, and

former Section 406.105.,

The

Board cannot find the Respondents

in violation of

Section

302.201,

as alleged by the Agency, because that section only

describes

the

scope

of

the

matters

addressed

in

Subpart

B

of

Part

302 and does not

in and of itself contain any standard

or

limitation

whicth might be violated.

Consequently,

the Board

finds the aforementioned Respondents to have violated

35

Iii.,

Adm,

Code

302,204

and

302.208,

former

Section

406.105,

and

Section 12(a)

of the Act,

Count V

Count

V

alleges

that

Larry

Bittle

d/b/a

Southern

Recycling,

William

Camber,

and

Leonard

Bittie

recovered

coal

fines

from

the

slurry pond

at the Peabody

No.,

18 site without an operating

permit,

in violation

of Section 12(b)

of the Act and

Rule

201

of

the Board’s Rules and Regulations, Chapter

4: Mine Related

Pollution,

As noted above, the Board’s Rules and Regulations no

longer exist

in that format,

However,

for the same reasons as

given

above,

the Board will apply the standards of Rule 201 to

the conduct alleged by this Count.

The Agency alleges that on July 5,

10,

12,

19,

23, and

30,

August

3, and September

7,

1979, Larry Bittie d/b/a Southern

Recycling, William Gamber, and Leonard

Bittle actively engaged

in

the recovery of coal fines

from the slurry pond at the site

without an operating permits

Joseph Wesselman testified

that he

77-111

---

—29—

observed the recovery of coal fines at the site on July 5,

10,

and 19, and September 7,

1979

(Tr.

2 at 33,

36,

52, and 68).

The

Board

notes

that

the

record

does

not

substantiate

the

Agency’s

allegations

that

carbon

recovery

was

observed

on the other

alleged dates

(see

Tr.

2 at

48,

55—60;

also,

there

is

no

mention

in the record of an Agency inspector visiting the site on July

23,

1979).,

Nevertheless,

there

is

adequate

evidence

in

the

record

to support the Agency’s contention that carbon recovery

took

place

on

the

site

(see,

for example,

Tr.,

1 at

39—40,

45,

and

7).,

Section 12(b)

of the Act provides that:

No person shall:

*

*

*

Construct,

install or operate any equipment,

facility,

vessel,

or aircraft capable of causing

or contributing

to water pollution,

or designed

to prevent water pollution,

of any type

designated

by Board regulations, without

a permit

granted by the Agency, or

in violation of any

conditions imposed by such permit.

Former Rule 201 of the Board’s Rules and Regulations

provided

that:

It

shall

be

unlawful

for

an

operator,

unless

he

holds

a permit therefore

from the Agency,

to

open, reopen,

or abandon any mine or mine refuse

area,

or,

six months after

the effective date of

these Regulations,

to conduct any mining

operation or dispose

of

any

mine

refuse,

Former Rule 103(m)

of the Board’s Rules and Regulations

defined

“mining” as:

the extraction from natural deposits of coal,

clay,

fluorspar, gravel, lead,

sand, stone,

zinc

or other minerals by the use of any mechanical

operation or process;

or

the recovery of said

minerals from a mine refuse area but does not

include dredging operations or drilling

for oil

or natural

gas.,

The term includes both surface

and

underground

mining.,

Respondent Larry Bittle admitted at hearing that neither he

personally nor anyone representing SR ever submitted

to the

Agency an operating permit application pertaining

to

the carbon

recovery operation

(R., at 753—754).

Moreover, Larry Bittie

acknowledged that he was aware, during

the time that carbon

recovery was ongoing, that an Agency permit was needed

for the

operation

(R, at 752) because Agency personnel had communicated

this

to William Camber

(Id.),

77-112

---

—30—

The

Board

finds

that the carbon recovery operation conducted

at the site was undertaken without an operating permit granted by

the Agency, as required by Section 12(b)

of the Act and former

Rule

201.

The

Board

consequently

finds

Larry

Bittle

d/b/a

Southern

Recycling

and

William

Gamber

to

have

violated

Section

12(b)

of the Act and former Rule 201,

Count VI

Count

VI

alleges

that

Respondents

Larry

Bittie

d/b/a

Southern

Recycling,

William

Gamber,

and

Leonard

Bittle

abandoned

their carbon recovery operation at the Peabody No,

18 site

without a permit to abandon,

in violation of Rules 201 and 502 of

the Board’s Rules and Regulations, Chapter

4: Mine Related

Pollution, and 35 Ill.

Adrn, Code 407.104,

As noted above

(see

p.

19),

the

Board’s

Rules

and

Regulations

were

codified

effective

August 21,

1981,

so Rules 201 and 502 have not existed

in their

prior form since that time,

However,

for the same reasons that

were given previously,

the Board

will apply the standards of

Rules

201 and 502

to the conduct alleged

in this Count,

The

Agency

asserts

that

on

numerous

dates

between

1979

and

1982, Agency inspections of the site revealed that no carbon

recovery work was underway there

(see,

for example,

Tr.,

2 at 76,

R.,

at 7—9,

23,

36,

51, and 66).

In

fact, Joseph Wesselman,

the

Agency inspector who visited the site twenty times between

December 14,

1979, and January

6,

1982, testified that he saw no

evidence after

December 14,

1979 that carbon recovery was

continuing at the site

(Tr,

2 at 79),

Larry Bittie testified at hearing that in May of 1980 he

participated

in the decision

to cease operations at the site

(R.,

at

753).

He

also

stated

that

no

application

was

ever

made

for

a

permit to abandon the site

(R. at 753—754).

Rule 201 stated

in pertinent part that:

It shall be unlawful

for an operator, unless he

holds

a permit therefore

from the Agency,

to,,.abandon any mine.,.,

Rule

502

stated

in

pertinent

part

that:

After

the

effective

date

of

these

Regulations,

if

an

operator

closes

down

a

mine

or

mine

refuse

operation and

its mineable reserves have been

depleted or an operator does not intend to reopen

the operation, the operator shall, within one

year

of

the

date

of

the

closedown,

obtain

a

permit

to

abandon.,

In

order

to

obtain

a

permit

to abandon,

the operator shall execute all

77-113

---

—31—

procedures reasonably necessary to prevent future

air and water pollution or violation of

Part VI

hereunder.

35

Ill, Adm. Code 407,104

states in full that:

The requirement of a permit to abandon contained

in Rule 502 of old Chapter 4, effective May

23,

1972 shall continue to apply to operators of

mines

opened

prior

to

the

effective

date

of

this

Subtitle

D,

Chapter

I until such time as such

operator shall have been

issued under this

Subtitle

D,

Chapter

I

a

valid

permit

containing

an

abandonment

plan,

In light of the lack of activity at the site since late

1979,

the Board

finds

that the carbon recovery operation has been

improperly abandoned without

a permit.

The Board

therefore finds

Larry

Bittle

d/b/a

Southern

Recycling

and

William

Camber

in

violation

of

former

Rules

201

and

502,

as

well

as

35

Iii, Adm.

Code 407.104.

Count VII

Count VII alleges that on numerous dates between 1980 and

1982,

all of

the Respondents caused or allowed the discharge of

effluent from the northernmost holding pond and the sedimentation

pond, both point sources, without an NPDES permit in violation of

Section 12(f)

of the Act and 35

Ill., Mm.

Code 309.102 and

403,102,

Section

12(f)

of

the Act states

in pertinent part that

No person shall:

*

*

*

Cause, threaten or allow the discharge of any

contaminant

into

the waters of the State, as

defined

herein,

including

but

not

limited

to,

waters

to

any

sewage

works,

or

into

any

well,

or

from

any point source within the State, without

an NPDES permit for point source discharges

issued by the Agency under Section 39(b)

of this

Act,..,,

Section

3(d)

of

the

Act

defines

“contaminant”

as

any solid,

liquid or gaseous matter, any odor or

any form of energy from whatever

source.,

77-114

---

—32—

35 Ill. Adm. Code 309.102(a)

states

in

full

as

follows:

Section 309.102

WPDES Permit Required

a)

Except as

in

compliance with the provisions of

the Act,

Board regulations, and the CWA, and the

provisions and conditions of the NPDES permit

issued

to the discharger, the discharge of any

contaminant or pollutant by any person into the

waters of the State from a point source or into a

well shall by unlawful.

35

Ill.,

Adm, Code 403.102 states in full as follows:

Section 403.102

NPDES Permits Required of

Certain Dischargers

Except as

in compliance with the provisions of

the Act, Board regulations, the FWPCA and the

provisions and conditions of the NPDES permit

issued

to the discharger,

the discharge of any

contaminant or pollutant by any person into the

waters of the state from a point source or

into a

well shall be unlawful.

The Board previously discussed

the evidence presented at

hearing regarding the discharges from the northernmost holding

pond

to the unnamed tributary of the Middle Fork

(see

pgs.,

19—

21),

and

those

from

the

sedimentation

pond

to

a

County

ditch

and

then to an unnamed tributary of Ewing Creek

(see

p.,

22).

There

is no dispute that those discharges occurred.,

The Board

additionally finds that there is no question but that those

discharges contained “contaminants” as that term is defined in

Section 3(d)

of the

Act.,

There

is no evidence

in the record

that an NPDES permit was

ever obtained for the discharges in question,

For that reason,

the Board

finds Larry Bittle d/b/a Southern Recycling, William

Camber, and 3.

Max Mitchell

in violation of Section 12(f)

of the

Act and 35 Iii,

Adm., Code 309.102 and 403.102,

CONCLUSION

The Board believes that the conduct exhibited by the

Respondents

in this case illustrates a serious disregard for the

environment

in general, and more specifically for the statutory

and

regulatory standards applicable to the carbon recovery

operation undertaken here,

For those reasons, and after

consideration of the factors enumerated

in Section 33(c)

of the

Act, the Board believes the imposition of penalties will be

necessary (discussed

below)

in this case.,

77-115

---

—33—

Regarding the Section 33(c)

factors, the Board makes the

following observations.

The threat to the environment from this

pollution source has been exhaustively detailed above,

The

recovery of carbon from former mine sites serves a social and

economic value when properly conducted.,

The carbon provides an

energy source and its removal

from former mines enhances the

environment,

However, an improper recovery operation creates an

environmental threat.

In the instant case,

the beneficial

aspects of recovering 60,000—70,000 tons of carbon

(R.

at 1117)

are minor

in comparison to the environmental threat which has

been created.,

The recovery operation

took place on land which

had been previously stripmined and to that extent

is a suitable

activity for that location,

Carbon removal can be

a positive

step towards strip mine reclamation,

Finally,

the Board notes

that there are technically and economically reasonable methods

for controlling emissions from mine sites,

The problem in this

matter stems

from the fact that they were not used,

and the

appropriate permits were not obtained.

PENALTIES

Larry Bittle must bear considerable responsibility for the

violations which occurred as

a consequence of the carbon recovery

operation.

Though he and William Gamber made all

of the daily

operational decisions,

it was widely recognized that Larry Bittie

was the “boss”

(Tr.

1 at 40),

The Board will therefore impose

a

penalty of $15,000 on Larry Bittle,

The penalty shall be reduced

to $3,000, however, should an Agency—approved remedial plan for

the site be implemented and completed within the time limitations

established by the Board’s Order, below.

William Gamber

is also culpable

for the violations which

occurred

in this matter,

for he did actively participate

in

the

decisionmaking regarding operations conducted at the site.

However, his was

a lesser

role than was Larry Bittle’s, and was

one

in which he was cast as something of an employee as well as

operator.

The Board will therefore impose a penalty of $5,000 on

William Camber.,

The penalty shall be reduced to $1,000, however,

should an Agency—approved remedial plan for the site be

implemented

and completed within the time limitations established

by the Board’s Order, below.

3, Max Mitchell

is significantly responsible for the threat

to the environment which now exists

in the form of the great

volume of ponded water

on his property.,

Mr., Mitchell had the

power

to control the actions of the other Respondents, as he

could have terminated

the lease due

to the lessees’

failure to

comply with the applicable environmental regulations.,

He failed

to do

so until substantial

environmental damage had

been done,

and moreover received more than $100,000 under the provisions of

the lease

(see A. Ex. 1).

The Board will therefore impose

a

77-1 16

---

—34—

penalty

of

$15,000

on

3.

Max

Mitchell,

The

penalty

shall

be

reduced

to

$3,000,

however,

should

an

Agency—approved

remedial

plan

for

the

site

be

implemented

and

completed

within

the

time

limitations established by the Board’s Order, below,

REMEDIAL PLAN

One of the forms of relief which the Agency seeks

in its

first amended complaint is the imposition upon the Respondents of

a requirement that they prepare, submit, and implement a plan,

acceptable to the Agency,

for the permanent abatement of the

threat of water pollution which presently exists at the site as a

consequence of the carbon recovery operation which took place

there.,

The Board believes there

is substantial merit

in this

idea,

but is taking it one step further by offering the incentive

of a reduced penalty to the Respondents should they succeed

in

implementing such

a plan within the time limitations established

by the Order below,

The contingency of the amount of penalty

ultimately imposed upon the Respondents does not in any way make

the remedial plan requirement optional

or discretionary to

Respondents; they will be jointly and severally responsible,

under

the

terms of the Order,

to prepare, submit, and implement

an Agency—approved remedial plan for the

site.,

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

It

is

the

Order

of

the

Board

that:

1,

Respondents Larry Bittle d/b/a Southern Recycling,

William Gamber, and Leonard Bittle have violated

Sections 12(a),

(b), and

(f)

of the Environmental

Protection Act,

35 Iii.

Adm.,

Code 302.201,

302.204,

302.208,

309.102, 403.102,

406,105,

406,106(b), and

407,104, and Rules 201,

502, 601(a), and 606(b)

of the

Board’s former Rules and Regulations.

2.,

Respondent J~Max Mitchell has violated Sections 12(a)

and

(f)

of the Environmental Protection Act,

35 Ill.

Adm, Code 302.201, 302.204,

302.208, 309,102, 403.102,

406105,

and 406,106(b), and Rules

601(a)

and 606(b)

of

the Board’s former Rules and Regulations.

3.

Respondents Larry Bittie d/b/a/ Southern Recycling,

William Gamber,

Leonard Bittle and 3.

Max Mitchell shall

cease and desist from further violations of the Act.,

77-117

---

—35—

4.

Respondents Larry Bittie d/b/a Southern Recycling,

William Camber, and

3., Max Mitchell shall prepare and

submit to the Agency within 90 days from the date of

this Order

a plan, acceptable to the Agency,

for the

permanent abatement of the threat of water pollution

which presently exists at the site as

a consequence of

the carbon recovery operation which took place

there.,

The plan shall address remedial actions to be taken in

response

to each of the violations found

by the Board

to

exist.,

Respondents shall submit the plan to the

following persons:

Ms., Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

State

of Illinois Center

100 West Randolph Street

Suite 11—500

Chicago, Illinois 60601

Ms.

Lisa

Moreno

Attorney

Illinois Environmental Protection Agency

2200

Churchill

Road

Springfield, Illinois 62706

5.

Within

60

days

after

receiving

the

Agency’s

approval

of

the

remedial

plan,

Respondents

Larry

Bittle

d/b/a

Southern Recycling,

William Gamber,

and 3.

Max Mitchell

shall

implement said plan fully.

6.,

Respondents Larry Bittle d/b/a/ Southern Recycling,

William Camber,

and

3.

Max Mitchell shall

be jointly and

severally responsible

for preparing, submitting,

and

implementing

an Agency—approved remedial plan,

in

accordance with the requirements described above.,

7.

Respondent Larry Bittie shall, by certified check or

money order payable

to the State of Illinois and

designated for deposit into the Environmental Protection

Trust Fund, pay a civil penalty of $15,000.

Said

penalty shall be reduced

to $3,000, however, should an

Agency—approved remedial plan for the site be fully

implemented and completed within the time limitations

established by this Order.,

Within 30 days after

implementation of the remedial plan, but

in no event

later

than 180 days

from the date of this Order, Larry

Bittle shall pay the civil penalty owed by him under

the

terms of this Order

to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield, Illinois 62706

77.118

---

—36—

8.,

Respondent William Camber shall, by certified check or

money

order

payable

to

the

State

of

Illinois

and

designated

for

deposit

into

the

Environmental

Protection

Trust

Fund,

pay

a

civil

penalty

of

$5,000.

Said

penalty

shall

be

reduced

to

$1,000,

however, should

an Agency—

approved

remedial

plan

for the site be fully implemented

and completed within the time limitations established by

this Order.,

Within 30 days after

implementation of the

remedial

plan,

but in no event later

than 180 days from

the date of this Order, William Gamber

shall pay the

civil penalty owed by him under

the terms of this Order

to:

Illinois Environmental Protection Agency

Fiscal

Services

Division

2200 Churchill Road

Springfield,

Illinois

62706

9.,

Respondent

3.

Max

Mitchell

shall,

by

certified

check

or

money order payable to the State of

Illinois and

designated

for deposit into the Environmental Protection

Trust Fund, pay a civil penalty of $15,000.

Said

penalty shall be reduced

to $3,000, however, should an

Agency—approved

remedial

plan for the site be fully

implemented and completed within the time limitations

established by this Order.,

Within 30 days after

implementation of the remedial plan,

but

in no event

later than

180

days from the date of this Order,

3., Max

Mitchell shall pay the civil penalty owed by him under

the terms of this Order

to:

Illinois Environmental Protection Agency

Fiscal

Services

Division

2200 Churchill Road

Springfield, Illinois 62706

10. The Agency shall notify the Board as

to whether

an

Agency—approved

remedial

plan

has

been

implemented

within the time limitations prescribed by this Order.,

IT IS SO ORDERED.

Joan Anderson concurred.,

I,

Dorothy

M.,

Cunn,

Clerk

of the Illinois Pollution Control

Board,

hereby

certi~y

that

the

above Opinion and Order was

adopted

on

the

/~cI—

day of

_____________,

1987,

by a vote

of

_________.

~,/

/(/I

~

/77.

Dorothy M. G~unn, Clerk

Illinois Pollution Control Board

77-119