ILLINOIS POLLUTION CONTROL BOARD
October 9, 1975
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
)
PCB 75—203
HARRY VON ABEL arid ALEXANDER W. HUTCHINGS,
d/b/a COAL CONVERSION
LTD.,
)
Respondent.
MR~ FRED BENSON, Assistant Attorney General, appeared for the
complainant;
MR. HARRY VON ABEL, Pro Se, appeared for the respondent.
INTERIM OPINION AND ORDER OF THE BOARD (by Mr~ Dumelle):
The Illinois Environmental Protection Agency (Agency)
filed a complaint on May 14E 1975 against Mr. Hairy Von Abel and
Mr~ Alexander W. Hutchings, d/b/a Coal Conversion Ltd~ (Respondents).
Respondents own and operate a mining facility designed to
recover coal from mine refuse located in Jackson County, Illinois.
The Agency alleged that Respondents conducted their
mining operation at the site prior to December 10, 1974, and con-
tinuing to the date of the filing of the complaint, without an
operating permit from the Agency in vioi~m~ionof Section 12(b)
of the Illinois Environmental Prote~tionAct (Act), and Rule 201
of Chapter 4, Mine Related Pollution Regulations (Mine Rules).
A hearing was held on August 7, 1975. The record indicates
that
on June 5, 1974 the Agency submitted to the Board and to
Respondents
a Request for Admission of Facts, This request called upon
Respondent to admit as true that Respondents had operated the
facility from prior to December 10, 1974 without an Agency
operating permit, and that Respondents collectively,
were
notified on six
occasions
by the Agency o~the need to secure
an operating permit,
(the
dates being March 6, 1975, (two
notices),
March 7, 1975, April 3,
1975,
April 7, 1975,
and
April 8,
1975).
The record
of the hearing establishes that
the
Request for Admission
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was received
by Respondents, and
that Respondents failed to
submit an
answer. Failure
to
answer
a Request for
Admission is
deemed an affirmative admission
of the facts, under
the Board~s
Procedural Rule 314.
In addition,
Mr. Von Abe1~stestimony
at the hearing
independently confirms his
March 6,
1975 notification by the
Agency as to
the necessity for a permit. On
that same
day
Mr. Von Abel
received an agency permit
application form (R.
12-13).
Mr. Von Abel
also testified that
Respondents submitted a
permit application
on
July 11,
1975
(R. 16). The permit
application
was submitted some
four months after
being first notified
of the
permit requirement (R. 16),
and two
months after the
May
14,
1975 filing of the
Complaint by the
Agency.
The record clearly
shows that
the Respondent at no time
during their mining
operation possessed
an operating permit
from the Agency.
Furthermore, while
Respondents now seek such
a permit and have filed an application, their operation
continued
from the date
of their being notified
as
to the need
for a
permit, until after the complaint was filed,
The Board could find
that
Respondents, Harry Von Abel,
and
Alexander N. Hutchings,
d/b/a Coal
Conversion Ltd. violated
Section 12(b) of the
Act and Rule
201 of the Mine Rules
by
failing to secure
an Agency
operating permit.
However, in its
assessment
of a decision and penalty, if
any,
the Board must take into
account
Section 33(c) of the Environmental
Protection Act, The record is silent upon many of these factors
and
it is difficult to make an informed judgment upon this record.
The
case is remanded to the Hearing Officer for such additional testi-
mony on each of the factors listed in Section
33(c)
as the
parties can provide. A hearing shall be held within 90 days
of
the date of this Opinion.
I. The cause is remanded to the hearing Officer
for
additional testimony upon
the
factors of Section
33(c).
2. A hearing shall
be
held in this cause within
90 days
of the date of this Opinion.
IT IS SO ORDERED.
I, Christan L.
Moffett,
Clerk of the Illinois Pollution
Control
Board, her~by
certify the above
interim Opinion a d
Order were adopted
on
the !~day of October, 1975 by a vote of ~
p
Christan L. Moff
Clerk
Illinois Pollutio ontrol Board
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