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.
    23
    225

    —2—
    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
    23
    226

    —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
    23
    227

    —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
    23
    228

    —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
    23
    229

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