ILLINOIS POLLUTION CONTROL BOARD

April 17,

1980

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 79-58

MINERALS

MANAGEMENT

CORPORATION,

a

District

of

Columbia Corporation;

)

IRWIN

NESTLER;

BROMLEY

K.

SMITH,

JR.;

JAMES

M.

DAY;

and

DENNIS

P.

BIXLER,

)

Respondents.

ORDER

OF

TUE

BOARD

(by

Dr.

Satchell)

On

March

27,

1980

the

Environmental

Protection

Agency

(Agency)

filed a motion for modification of the Board’s Opinion and Order

of March

20,

1980.

Pursuant to the allegations of Count IV of the

second amended complaint the Board found Minerals Management Corp-

oration,

Irwin Nestler and Bromley K.

Smith

(Respondents)

in

violation of Section 12(a)

of the Environmental Protection Act

(Act)

and Rule 502 of Chapter

4:

Mine Related Pollution which

requires

a permit to abandon within one year of abandonment of a

mine.

In its motion the Agency states that in the complaint it

did not intend to allege a violation of Rule 502 itself but

in-

tended to allege a violation of Section 12(a)

by threatening the

discharge of contaminants through violation of Board regulations,

namely Rule

502.

Without addressing the sufficiency of the allega-

tion,

the

Board notes that Respondents did not at the hearing

understand Count IV to mean what the Agency now says it meant

(R.

311).

The Board also failed to understand its intent.

Since

it did not reasonably inform Respondents of the nature of the

charges against them,

Count IV will be stricken from the complaint

and the penalty lowered to $4000.

The Agency also requests modification of an ambiguous sentence

in the fourth paragraph of page eleven of the Opinion.

This will

be modified to read:

“The Board will therefore assess only a

monetary penalty against the individual respondents Irwin Nestler

and Bromley K.

Smith,

Jr.”

ORDER

Paragraphs two and five of the Board’s Order of March 20,

1980 are modified to read as

follows:

---

--2—

2.

Respondents Irwin Nestler,

Bromley K.

Smith,

Jr. and

Minerals Management Corporation are in violation of

§~9(c),12(a)

and 12(b)

of the Environmental Protection

Act, Rule 502 of Chapter

2:

Air Pollution Control

Regulations and Rules 201 and 501(a) (1)

of Chapter

4:

Mine Related Pollution.

5.

Within thirty—five days of the date of this Order, Re-

spondents Irwin Nestler,

Bromley K.

Smith,

Jr. and Miner-

als Management Corporation shall, by certified check of

money order payable

to the State of Illinois, pay a joint

and several civil penalty of $4000 which is to be sent to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

Illinois 62706

IT

IS

SO

ORDERED.

Mr. Werner dissented.

I,

Christan L.

Moffett,

Clerk of the Illinois Pollution

Control Board, hereby certify the above Order was adopted on

the

_____

day of

____________,

1980 by a vote of

‘I-~/

ristan

L.

Mo

,

C erk

Illinois Pollutio

Control Board