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.
    23
    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
    23
    98

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