ILLINOIS POLLUTION CONTROL BOARD
August
5
,
1976
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 76-5
JOSEPH D. THOMAS,
d/b/a THOMAS
EXCAVATING,
Respondent.
Mr. Steven Watts, Assistant Attorney General, appeared for
the Complainant.
Mr. John A. Lambright appeared for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Dr. Satchell):
This matter comes before the Pollution Control Board
(Board)
upon a complaint filed by the Environmental Protec-
tion Agency
(Agency)
on January
6, 1976.
The complaint
alleges that Joseph
D. Thomas d/b/a Thomas Excavating has
operated since November 23,
1972 a coal mine without a permit
in violation of Rule 201,
Chapter
4: Mine Related Pollution
(Mine Rules)
and Section 12(b)
of the Environmental Protection
Act
(Act).
A hearing was held in this matter on April
26, 1976.
Respondent’s attorney made two motions to dismiss
at the
hearing.
The first motion was to dismiss the complaint
because of a newspaper account concerning this matter.
Respondent claims bias and/or prejudice on the part of
the Agency and that the Agency
is sitting in judgment con-
cerning its own actions
(R. 6-9).
Respondent’s motion is
based on a misconception that the Agency and the Board are
the same entity
(R.
8).
The Environmental Protection Agency
and the Pollution Control Board are two complete and separate
agencies as provided for by the Environmental Protection Act,
Ill.
Rev.
Stat.
Ch.
111 1/2,
§~1001—1051
(1975).
The
second motion to dismiss was a claim that the Agency failed
to present a prima facie case
(R.
92,93).
The Board finds
this motion to be without merit.
Both of the motions are denied.
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At the hearing it was stipulated that Mr. Thomas owned
the land in question, Lot 76
in School Division of
Section 16, Township 19 North, Range 11 West of the
Second Principal Meridian in Vermilion County,
Illinois
(R.
6,7)
.
It was also stipulated that the Agency’s
interrogatories and Respondent’s answers would be intro-
duced into the record without objection
(R.
36,37).
Respondent’s site in Vermilion County
is run as
a
landfill
(P.
21).
The site was purchased approximately
six years ago
(P.
100).
The previous owner had strip
mined the land and on completion of the mining operation
he operated a landfill in the strip mine area.
(R.
101,
102).
The running of the landfill itself is not
in question
in this case.
Mr. Thomas discovered coal on the landfill site
in
approximately April of 1975
(R.
21).
He removed coal
fron’.
the seam from the latter part of June 1975
to the middle
of December 1975
(R.
22, 118).
Thomas estimates
he re-
moved between 4,500 and 5,500
tons of coal from the site
during this time
(R.
22).
The coal was sold to various
buyers
at a price varying from fifteen to twenty-two
dollars
a ton
(P.
22,23).
Respondent estimates total
sales were approximately $60,000
(R.
26).
Mr. Thomas
stated that on one occasion he did have a problem with
leachate
(P.
31).
Respondent dug a trench to drain the
water
to the southeast;
this would eventually flow into
the Vermilion River
(R.
33,34)
Two
Agency witnesses, Gilbert E.
Stauffer and John
Diefer~back, testified that they had seen the coal in question
and its removal.
On August 27,
1975 Mr. Stauffer visited the
site to inspect the landfill
(P.
41)
.
At that time he
ohserved
standing water in the excavation that was red in color
(R.
42)
He had been told that the water was red because it actually
stood on the coal
(R.
43)
.
Stauffer estimated the quantity
of water to be approximately 10,000 gallons
(P.
43)
.
There
was
a trench from the standing water which drains to the
east
(P.
44).
Mr. Stauffer talked to Respondent on Septem-
ber
4,
1975 concerning permits
(P.
45)
.
Stauffer stated
Thomas could not get an operating permit for the landfill
(he
has
a development permit)
until he received
a mine permit from
the Division of-Water Pollution Control
(R.
45,46).
Stauffer
was at the site on November
6,
1975
(R.
48)
.
He did not see
any mining per se but did see equipment that could be used for
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—3—
the landfill or mining
(R.
49).
He and Mr. Thomas had a
discussion concerning the potential problems of the coal
in the landfill
(R.
50).
John Diefenback testified that he had visited the
site on December 4, 1974 and on that occasion had seen
coal at the site
(R. 69).
Diefenback was at the site on
August 19, 1975 and again saw the coal seam
(P.
70).
On
a visit on September 17,
1975 he witnessed a
dump
truck
full of coal leave the site
(R. 71).
Rule 103(m) of the Mine Rules defines mining as “the
extraction from material deposits of coal,
.
.
.
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.”
Clearly Mr. Thomas was extracting
minerals from the ground.
The Board does find Respondent
in violation of Mine Rule 201 and Section 12(b)
of the Act.
Before the Board can fashion a remedy in a case the
factors of Section 33(c)
of the Act must be considered.
Mr. Thomas is running a landfill.
He does have a develop-
ment permit and as yet does not have an operating permit
CR.
34,45,46).
The permit section of the Division of Land
Pollution Control could not issue
an operating permit until
a mine permit was issued by the Division of Water Pollution
Control
(P.
45,46).
The Division of Water Pollution Control
could not issue a permit until Respondent obtained a permit
from the Illinois Department of Mines and Minerals
(P.
126).
Respondent did get a permit from the Department of Mines
and Minerals in April 1976
(R.
121,122).
He has not received
an Agency permit because he has not built
a settling pond
(P. 137).
Respondent, after mining the coal in
question,
does not know how much remaining coal there is nor where it is
and,
therefore, alleges he can neither determine the size nor
the location for the settling pond required.
Respondent’s
main business
is the landfill.
Finding the small coal seam
in the landfill gave him
the options to remove it or to
work around it.
Respondent chose to remove the coal.
Removing
the coal created environmental problems that are not controlled
by the same considerations as those of a landfill.
Although
the Agency presented no evidence concerning violations of the
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—4—
water standards, the water turning red from the coal and
draining eventually into the waters of the State can cause
pollution and compound other existing problems.
The lack
of forethought concerning the environment is why the permit
system exists.
It is necessary to protect the environment
before the damage is done.
Mr. Thomas has covered the coal and is no longer re-
moving it
(P.
118).
The Agency has made no allegations of
damage to the environment.
The mining operation was run
only a short time, June through December 1975.
Since
December Mr.
Thomas has been covering the coal seam as the
landfill progresses.
The Board finds that a penalty is
necessary in this case to maintain the integrity of the
permit system and to protect against further environmental
damage.
A penalty of $500 is assessed.
Mr. Thomas shall
refrain from future violations of the Act.
This Opinion constitutes the findings
of fact and
conclusions of law of the Board.
ORDER
It is the order of the Pollution Control Board
that:
1.
Joseph D. Thomas d/b/a Thomas Excavating was
in
violation of Rule 201 of the Chapter
4: Mine
Related Pollution Rules and Section 12(b)
of the
Act.
2.
Respondent shall
cease and desist from future
violations of the Rules and the Act.
3.
Respondent shall pay a penalty of $500 within
35 days of this Order.
Payment shall be by
certified mail or money order payable to:
State of Illinois
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
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—5—
I, Christan L. Moffett, Clerk of the Illinois
Pollution
Control Board, hereby certify the abov
Opini
and Order
were adopted on the
I~#~
day of
______________,
1976 by
a vote of
___________
Chris an
L. Moffet
r
Illinois Pollution
ol Board
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