ILLINOIS POLLUTION CONTROL BOARD
    January
    4
    ,
    1979
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    Complainant,
    v.
    PCB
    78—64
    NOUSHON CONSTRUCTION
    COMPANY,
    INC.,
    a
    Nevada
    corporation,
    )
    Respondent.
    MR. DOUGLAS
    P.
    KARP, ASSISTANT ATTORNEY GENERAL, APPEARED ON
    BEHALF OF THE COMPLAINANT.
    MR. GARY ORR, ATTORNEY AT LAW, APPEARED ON BEHALF OF THE
    RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by Dr. Satchell):
    This matter comes before the Board upon a complaint filed
    on March
    10,
    1978 by the Environmental Protection Agency
    (Agency).
    The complaint alleges that Respondent has operated
    a sand and gravel mine without a permit in violation of Rule
    201 of Chapter
    4:
    Mine Related Pollution Regulations
    (Chapter
    4)
    and Section
    12(b)
    of the Environmental Protection Act
    (Act).
    The complaint further alleges
    a violation of Rule 301 of Chapter
    4.
    A hearing was held on September 14,
    1978.
    An Agency inspector, James E.
    Kanimueller, testified to
    seeing on August
    5,
    1976 heavy equipment,
    a classifier,
    a
    weigh scale for trucks and several piles of sand and gravel
    (R.
    37,
    Ex.
    5).
    No people were observed at the site.
    On
    November 10,
    1977 the site was essentially unchanged except
    for some change in the amount of sand and gravel piled up
    (R.
    51).
    No evidence of mining in the stream bed was ob-
    served
    (R.
    72).
    A second Agency employee, Jay Rankin, visited the site
    on April
    7,
    1978
    (R.
    111).
    He
    observed sand and gravel
    stockpiled
    (R.
    113).
    He saw no mining equipment
    (R.
    113).
    The Agency relies heavily on a statement by Mr. Moushon
    made over the telephone that he had mined the stream bed of
    Farm Creek;
    however, the time of this mining was not estab—
    lished
    (R.
    91).
    Mr. Moushon states he did take gravel from
    the creek bed prior to 1950
    (R.
    128,
    131).
    Neither Mr. Moushon
    nor Moushon Construction Company,
    Inc.
    owns the land in
    question
    (R.
    124).
    Moushon Construction Company, Inc. was
    32—343
    —2—
    issued a mining permit in May, 1978
    (R.
    106).
    There has been
    mining equipment stored on the site;
    however, it was removed
    in the latter part of November,
    1977
    CR.
    125).
    The Corps of
    Engineers did the original mining in approximately 1938-1940
    (R.
    140).
    Stockpiles on the site were left from that time
    CR.
    156).
    Material was hauled in,
    blended, stockpiled and
    re-loaded out during the time period of the complaint
    (R.
    154).
    The Agency also relies on the representation made to
    Mr. Rankin by Mr. Bettler, Respondent’s engineer, that the
    permit application needed quick action because the mine was
    currently in operation
    (R.
    110).
    Considering the facts before
    the Board it is uncertain whether this referred to mining or
    blending; however,
    it is irrelevant because the statement was
    made in April,
    1978
    CR.
    110)
    and the time period of the com-
    plaint ends with the date of filing, March
    10,
    1978.
    Mining as defined in Chapter
    4 is
    “the extraction from
    natural deposits of coal,
    clay,
    fluorspar, gravel,
    lead, sand,
    stone, zinc or other minerals
    .
    .
    .
    or the recovery of said
    minerals from a mine refuse area.
    .
    .
    .“
    The evidence does
    not show extraction has taken place or that this
    is a mine
    refuse area.
    After the Attorney General’s closing argument
    the fact that there were unanswered admissions was raised
    (R.
    177).
    All the areas of inquiry requested to be admitted
    were covered in the evidence presented.
    The admissions were
    unanswered; however,
    the Board does note the Respondent’s
    apparent confusion as to the definition of mining
    CR. ~49, 154,
    167,
    168).
    Although unanswered admissions are deemed admitted
    under Procedural Rule 314 the Board will not find violations
    based on the admissions given the evidence presented.
    The
    Board finds that the evidence is not sufficient to find the
    violations alleged.
    The compliant is dismissed.
    This Opinion constitutes the Board’s findings of fact
    and conclusions
    of law in this matter.
    ORDER
    It
    is the Order of the Pollution Control Board that the
    allegations of violations of Rules 201 and 301 of Chapter 4:
    Mine Related Pollution and Section 12(b)
    of the Environmental
    Protection Act as alleged in the complaint of March 10,
    1978
    are dismissed.
    32—344
    —3—
    I, Christan L.
    Moffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above Opinion and Order
    were adopted on the
    __________
    day of
    _____________,
    1979
    byavoteof
    4.’c
    .
    Illinois Pollution
    ol Board
    32—345

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