ILLINOIS POLLUTION CONTROL BOARD
July
22,
1976
ENVIRONMENTAL PROTECTION AGENCY,
)
)
Complainant,
v.
)
PCB 75—203
HARRY VON ABEL and ALEXANDER W.
HUTCHINGS,
d/b/a COAL CONVERSION,
LTD.
Respondents.
Fredric Benson, Assistant Attorney General, appeared for
complainant.
Mr. William Wilson appeared for respondent.
OPINION AND
ORDER OF THE BOARD
(by Dr.
Satchell):
The Illinois Environmental Protection Agency
(Agency)
filed a complaint on May 14,
1975 against Harry Von
Abel and
A1exar~derW. Hutchings, d/b/a Coal Conversion Ltd.
The Agency
alleged that Respondents operated a facility to recover coal
from a mine refuse area as defined by Rule 103 of the Regu-
lations on Mine Related Pollution
(Mine Rules)
without a
permit in violation of Rule 201 of the Regulations and Sec-
tion 12 (b)
of the Environmental Protection Act
(Act).
On
June
5,
1974 the Agency filed a Request for Admission of
Facts.
These facts included that Respondents had operated
their mine facilities since December 10,
1974 without
a permit
and that the Agency had notified them of the need for a permit
on six different occasions.
A hearing was held on August
7,
1975.
Respondents failed to answer the Request for Admissions.
Under Board Procedural Rule 314 failure to respond is deemed
an affirmative admission of the facts.
In an Interim Order on
October
9, 1975 the Board found basis for finding the alleged
violation but also found inadequate information concerning the
factors required by Section 33(c)
of the Environmental Protec-
tion Act
(Act).
The case was remanded for another hearing
concerning the Section 33(c)
factors.
On January 19, 1976 the Agency filed an amended complaint.
This complaint stated the allegations of the original com-
plaint as Count
I but limited the time of operating without a
permit from December 12, 1974 to August 10,
1975.
Respondents
were issued a permit on August 11,
1975.
Count II of the
amended
complaint alleges that Respondents operated their mine
—2—
so as to cause or allow the discharge of contaminants into
the environment in violation of Section 12(a)
of the Act;
that Respondents have violated Standard Condition
2 of
their mining permit in violation of Section 12(b)
of the
Act; that Respondents have discharged effluent in violation
of Rules 203(a), 203(b)
and 203(f) of the Chapter 3: Water
Pollution Regulations and Condition 10 of their mining permit
and Sections
12(a)
and 12(b) of the Act; and that Respondents
operated their mine facility so as
to cause the discharge of
effluents into the environment so as to cause violations of
203(a),
203(b) and 203(f) of the Water Rules, Rules
605(a),
605(b) and 606(a)
of the Mine Rules and Section
12(a)
of
the Act.
Count III alleges that Respondents have abandoned
the mine in violation of Rule 501(a) (1)
of Mine Rules by
failing to notify the Agency within 30 days of cessation of
mining.
The second hearing in this matter was held April 21,
1976.
The Agency presented testimony concerning Counts II
and III.
Harry Von Abel testified for Respondents.
The Board finds that the previously mentioned admissions,
being deemed admitted are sufficient to find Respondents in
violation of Mine Rule 201 and Section 12(b)
of the Act for
conducting
a mining operation without an appropriate permit
having been issued by the Agency from December 10,
1974 to
May
10,
1975.
The permit was issued to Coal Conversion Ltd.
on August
11,
1975.
The permit is for a mine refuse area site at the South
half of Section 20 and the North half of Section 29 in Town-
ship
7 South, Range
1 West of the Third Principal Meridian in
Jackson County, Illinois.
The conditions of the permit
(Comp.
Ex.3)
require a three feet wide bottom ditch around
the entire perimeter of the mining works which was to be
diverted to the holding or settling pond.
The ditch was
to be dug with 2:1 side slopes dug to
a depth six to twelve
inches below the carbon deposits into the original clay
(Comp.
Ex.3).
Although the Respondent~attemptedto dig a
ditch they did not comply with the permit conditions
(Comp.
Ex.4,
R.
67—70).
The ditch was dug with vertical sides
(R.67).
The sides have sioughed off.
Coal refuse has eroded
into the ditch,
filling the ditch to within approximately six
or twelve inches to the top (R.67).
The permit conditions also
call for a settling pond, designed for 2.29 acre-feet of water
and a three-foot operating depth
(Comp.
Ex.
3,
p.5).
The
lagoon was to handle a four inch rainfall per day runoff and
23
—
94
—3—
allow twenty-four hour detention (Comp.
Ex.
3,
p.
5).
The
lagoon was to be baffled to prevent short circuiting
(Comp.
Ex.
3,
p.
5).
Mr. Gates, the Agency inspector and witness,
testified that there was no lagoon constructed as required
by the permit
(R.
64,
248).
Mr. Abel insisted a lagoon had
been built in the northeasterly quarter of the refuse area
that is dug down to the clay
(R. 216).
According to the
permit a sedimentation pond with limer was to be built in
the northeast one quarter of the mine refuse area
(Comp.
Ex.
3,
p.
8).
In this section of the area Mr. Gates states
he saw no lagoon as described in the permit;
he has observed
a pond in the coal fines
(R.
249).
This pond is not con-
structed according to the permit and is built so that water
collecting in the pond could percolate out and into the
stream
(R.
249, Comp.
Ex. 18).
The Agency did present evidence of samples of water
taken from sites in the mine refuse area and downstream
from the mine.
Drainage from the mine runs into an unnamed
tributary of Little Muddy River;
the Little Muddy flows into
the Big Muddy and finally to the Mississippi.
A sample
taken upstream from the mine refuse area on April
3, 1975
showed the stream was in compliance with all the water
quality standards of Rule 203(f)
of the Chapter
3: Water
Pollution Regulations with the exception of iron
(Comp.
Ex.
1-A).
The standard for iron is 1.0 mg/i and the upstream
sample was 2.0 mg/i
(Comp.
Ex.
1-A).
Samples taken from the
refuse site and downstream on April
3,
1975 show varying
violations of the iron, manganese, and total suspended solids
standards of Rule 203(f) of the Chapter
3: Water Pollution
Regulations
(Water Rules)
and all samples showed violations
of the range of pH allowable under Rule 203(b)
of the Water
Rules, total acidity was always beyond total alkalinity
(Comp. Exs.
1,
2).
Upstream from the refuse area the water
is more alkaline than acid
(Comp.
Ex.
1-A).
The iron vio-
lation was as high as 5.8 mg/i and 11.0 mg/i on two different
samples
(Comp.
Ex.
1-B, 2-B).
Mr. Gates testified that there
were coal fines and rusty iron deposits on the coal fines
in
several sampling areas
(R.
103, 118, 120,
121).
These deposits
are violations of Rule 203(a)
of the Water Rules and 605(b)
of the Mine Rules.
Rule 605(a)
of the Mine Rules provides
that
“
.
.
.
no effluent shall, alone or in combination with
other sources, cause a violation of any applicable water
quality standard.”
These aforementioned violations of the
Chapter 3: Water Rules therefore constitutes a violation of
Rule 605(a)
of the Mine Rules.
23 —95
*4—
Mr. Abel presented evidence in an attempt to show water
other than that of his mine refuse area contributed to the
pollution of the unnamed tributary.
The evidence presented
did not show any other water that flowed into the stream
violated the water standards of the State of Illinois or
contributed to the pollution of the stream.
Mr.
Gates testi-
fied he saw drainage coming directly from the gob pile
entering the stream
(R.
250).
This would indicate that the
Respondent’s mine refuse area
is the main contributor to the
pollution of this tributary.
The Board does find that Res-
pondent is
in violation of all the allegations of Count II;
Rules
203(a), 203(b),
203(f)
of the Water Rules, Rules 605(a)
and 605(b)
of the Mine Rules and Sections
12(a)
and 12(b)
of
the Act.
In Count III the Agency alleges
a violation of Rule
501(a)
of the Mine Rules by Respondents’
failure to notify
the Agency within thirty days of cessation of mining.
The
Board finds the inconsistency of the pleadings prevent the
finding of a violation of this regulation.
The complaint and
the evidence are conflicting.
The Agency alleges that on
five given dates the mine appeared abandoned; however,
these
same five days are listed as days of operation in Count II.
The evidence on this point is also inconclusive.
Mr.
Gates
said at one point he had not seen any recent work at the site;
however,
he could not remember for certain what days trucks
were there and men working and what days there were not
(R. 124,
146).
Mr. Abel testified he goes back three
times
a week to “open up the trench.”
It is obvious that at some
point in time the refuse area was abandoned, but the proof as
to that point in time
is lacking.
Count III
is dismissed.
This does not relieve Respondent of the responsibility of com-
plying with the Mine Regulations, specifically Rules 501 and
502 dealing with notice and permits.
Before final deter-
mination of a remedy in this case the Board must consider the
factors enumerated in Section 33(c)
of the Act.
This case
was specifically remanded for hearing on these matters.
The
Agency filed
a Request for Interrogatories concerning these
factors on November 18,
1975.
Respondent made no answer to
the interrogatories.
This precluded Respondents from pre-
senting ameliorating factors at the hearing.
The Board will
consider the facts
it has in light of Section 33(c).
The
injury
in this case is obvious.
The water upstream is for
the most part clean and
a viable water source for plant and
animal life; downstream the water violates many of the State’s
Water Standards.
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96
—5—
This not only disrupts the natural balance for plants and
animals but may ruin the water as
it flows into larger
streams for human use.
The potential good of Respondents’ operation when
handled in a manner that prevents pollution is great.
Re-
moving an unsightly refuse pile is
a worthwhile project.
However,
to do so in a manner such as Respondent is of no
social value.
The eye sore has not been removed and the con-
dition of the area has deteriorated.
The site in question has existed since 1929
(R.
201).
Although Respondent had no control over the location of the
refuse pile originally, the site
is certainly unsuitable for
any addition to an already existing problem.
The Agency witness indicated that following the permit
conditions would eliminate the pollution problem
(R.
251).
Mr. Abel has indicated that this has not been a profitable
venture.
He lists assets of $400 and liabilities of $20,000
(R. 225).
Some of the property has been sold with the pro-
ceeds going into building the ditch around the perimeter
(R.
234, 236).
Mr. Abel buys and sells coal
(R.
232).
Buying
and selling coal does not necessarily give one the expertise
to run a mining operation.
Mr. Abel is a partner with Mr.
Hutchings
(R.
229).
There
is nothing in the record to show
that the assets of this partnership are insufficient to remedy
the problem Respondents have caused.
The Board finds that
Respondents must cease and desist any further violation of
the Regulations or the Act.
The Board finds a penalty of
$2,000
is necessary to aid in the enforcement of the Act.
This Opinion constitutes the Board’s findings of fact
and conclusions of law.
ORDER
It is the Order of the Pollution Control Board that:
1.
Respondents have violated Mine Rule 201 and
Section 12(b)
of the Act, Rules
203(a),
203(b),
203(f)
of the Chapter
3: Water Pollution Regula-
tions, Rules
605(a) and 605(b) of the Mine Rules
and Sections 12(a)
and 12(b)
of the Act.
The
allegation of violation of Rule 501(a) of the Mine
Rules
is dismissed.
23 —97
—6—
2.
Respondents shall cease and desist all future
violations of the Act.
Respondents shall bring
their mine into compliance with all permit
conditions and Regulations.
3.
Respondents, Harry Von Abel and Alexander W. Hutchings,
d/b/a Coal Conversion Ltd.,
shall jointly and severally
pay a fine of $2,000.
Payment shall be by certified
check or money order payable to:
State of Illinois
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
Payment shall be within
35 days.
Mr. James Young abstained.
I Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby cer~fythe above
pinion and Order
were adopted on the
~I~”
day of
______________,
1976 by
a vote of
___________
Christan
L. Mo~ffe~t,
c44k’)
Illinois Pollution Coi~(~i
Board
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