ILLINOIS

POLLUTION

 CONTROL

BOARD

December

1976

ENVIRONMENTAL

PROTECTION

AGENCY,

Complainant,

)

PCB

75—168

HAROLD

WOODS,

General

Partner,

d/b/a

ST.

ELLEN

LAND

COMPANY,

)

Respondent.

Ms.

Marilyn

Resch

and

Mr.

John

vanVranken,

Assistant

Attorneys

General, appeared for the Complainant;

Mr.

G.

 Bradley Hantla, Attorney, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

 (by Mr.

 Zeitlin):

This matter is before the Board on

 a Complaint

 filed on

April 23,

 1975,

 by the Environmental Protection

Agency

 (Agency)

alleging that Respondent Harold D.

 Woods, individually, owned and

operated a coal mine in St. Clair County,

 Illinois,

 without the

requisite permits from the Agency,

 in violation of Section 12(b)

of

the

Environmental Protection

 1\ct

 (Act)

 and Rule 201 of the

Board’s Mine-Related Pollution Regulations

 (Chapter

4).

 Ill.

 Rev.

Stat.,

Ch.

 111—1/2, §1012(b) (1975);

 Ill. PCB Regs.,

Ch.

4,

 Rule

201.

 On June

11,

 1975,

 the Agency filed an

Amended

Complaint,

changing

the

denomination of Re~pondont (~is shown

 ~bovc)

~nd

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Section

 9(b)

 of the Act and Rule 103(b) (2)

 of the Board’s Air

Pollution Control Regulations

 (Chapter 2).

 Ill.

 Rev.

 Stat.,

Ch.

111—1/2, §1009(b) (1975);

 Ill, PCB Reqs.,

Ch.

2,

 Rule 103(b) (2).

A final Amended Complaint was filed by the Agency on October

2,

1975,

 adding a third count alleging that Respondent’s operations

had caused the emission of contaminants, constituting air pollution,

in violation of Section 9(a)

 of the Act and Rule 102 of Chapter

2.

Ill.

 Rev.

 Stat.,

Ch.

 111—1/2, §1009(a)

 (1975);

 Ill.

 PCB Regs.,

Rule 102.

24

—

307

—2—

Three public hearings have been held

 in this matter.

 The first

was held on June

 16, 1975,

 at the City Hail

 in Believille,

 Illinois.

Although public comment was received

at

that hearing,

 no substantive

evidence was entered by either Complainants

 or Respondent.

 At a

further hearing held on September

8,

 1975, also

 in Belleville,

the

parties entered a Stipulation of Fact with regard to Count

 I of the

Complaint,

 as amended.

 No evidence or testimony was submitted with

regard to Count

 II because the parties were unable to arrive at

a

settlement with regard to that Count,

 (The final Amended Complaint

containing Count III had not yet been filed by the date of this

hearing.)

A third and final hearing, again in Belleville, was held on

September

8,

 1976.

 Despite notice by the Hearing Officer

 (Sept.

8,

1976,

R.

2)

 neither Respondent nor counsel

 for Respondent appeared

at that hearing.

 In addition to that notice by the Hearing Officer,

Respondent

 (through counsel) had also been served by the Agency with

a Notice

 to Appear at the September

8,

 1976 hearing

 (id.,

R.

5).

That Notice to Appear was filed with the Board on September

2,

 1976.

Based on Respondent’s failure

 to appear,

 the Hearing Officer defaulted

the Respondent

 (id.,

R.

4,

6).

As

 a result of Respondent’s default,

 the Board bases this

Opinion and Order on the Stipulation filed by the parties on

September 15,

 1975, with regard to Count

 I, various citizens’

testimony,

 and evidence and exhibits

 (including responses

 to Inter—

roqatories and Requests for Admissions)

 presented by the Attorney

General

 for the Agency, and the pleadings.

As a final procedural matter, we note that the Board has

previously dealt with this case

in

 several decisions

on

 discovery

and related matters.

 Interim Orders of the Board were entered on

June

 26, November 26 and December 11,

 1975;

 January 14 and April

8,

1976.

The subject of this case is a mine site owned and operated by

Respondent Woods

 in St. Clair County,

 ii1~flO1s, commonly

 known

as

the

 E11(~ll Miiio

 (~liI)IIIdI

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 LIio

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 lIdS not

 1)0011

 OI)O.IIO(I

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01

 “JU1

 I)’

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voars,

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(Sc’pL.

1976,

32)

Pespondcn(

1

 coinliict ~

u

c~irUon

recovery

operation

the

mine

site,

(Stip.

¶3)

using

coal

tailings

 coal

fines

raw

material,

(Sept.

1976,

hearing,

9)

That operation involves considerable movement of various raw and

finished materials around the site, use of a rotary dryer,

 a settling

chamber,

 two cyclones

 in series,

 and a Venturi scrubber,

 (Id.,

P.

 9-10)

Water discharges from the

operation,

 after

 treatment in

 a settling

pond, travel through an unnamed tributary into Richland Creek, and

then into the Kaskaskia River,

 (Respondent’s Ex.

1

 to Stip.; see

also, Complainant’s Ex.

1

&

2,

 Sept.

8,

 1976)

24

—

308

—3—

The status of Respondent’s involvement in continuing or future

operations on the site is not clear.

 It is apparent from the Stipu-

lation and testimony by various citizens that operations

on

the

site continued until mid or late 1975,

 past the filing of the

original Complaint,

 and probably until the final Amended Complaint

was filed.

 It seems, although the record is not clear on this point,

that Respondent will continue as owner of the St. Ellen Mine

 site,

with operations

 to be continued by other unnamed parties,

 (e.g.,

Ex.

1,

 2 of Sept.

8,

 1976,

 and R.

 33, Sept.

8,

 1976).

With regard to Count

 I, Respondent admitted

 in the Stipulation

filed at the second public hearing that

 it did not have the necessary

mine—related pollution permit under Chapter

 4 for operations

 on the

site,

 (Stip.

 ¶3,

7).

 By way of mitigation, Respondent showed that

by the time of the second hearing in this matter,

 that permit had

in fact been applied for and received,

 (Resp.

Ex.

 1 to Stip.).

In

addition,

 the Stipulation indicates that Respondent had relied with

regard to that permit on an employee charged with the responsibility

of obtaining all such permits.

 That individual was terminated upon

the filing of this matter before the Board,

 (Stip.

 ¶9A).

Although the violation was stipulated

 to, neither party addressed

the issue of an appropriate penalty for such violation.

We

 feel,

in light of the fact that Respondent has presented no testimony

under Section 33(c)

 of the Act,

 that a $100 penalty is appropriate

to further the purposes of the Act and to safeguard the integrity

of the permit system.

 Ill.

 Rev.

 Stat.,

 Ch. 111-1/2,

 §33(c) (1975).

Processing and Books,

 Inc.,

v.

 PCB,

 64 Ill.2d 68, 35lN.E.2d 865(1976).

With regard to the remaining Counts

 II and III of the Complaint,

as amended, they are admitted by default,

 In addition to that default,

the record contains considerable evidence presented by the Agency

and various citizens substantively proving those violations.

 Testi-

mony at the September

8,

 1976 hearing

(R.

 7 et seq.,

 33 et seq.),

and Respondent’s response to Complainant’s Request for Admission,

(Sept.

8,

 1976,

Ex.

1,

 2), showed that,

 (1) the alleged operations

by Respondent did

 in fact occur;

 (2) ‘they were subject to the permit

requirement; and

(3)

 that no permit was received.

A

prima

facie

case on Count

IT,

 unanswered by Respondent,

 is thus made.

With regard to the allegation of substantive air pollution

in

Count III of the Complaint,

 as amended, testimony by witnesses for

the Agency

(R.

 70, et seq.), and Exhibits

 (Sept.

8,

 1976,

Ex.

 3A—3G),

showed that there were indeed considerable visible emissions from

Respondent’s facility.

 Testimony

by

private citizens at the public

hearings

 in this matter buttressed the Agency’s case,

 and showed

without refutation that those emissions caused considerable hardship

to the public.

 The emissions resulting from Respondent’s operations

caused individuals to remain indoors, badly soiled their homes and

personal belongings and generally interfered with the enjoyment of

life and property,

 (e.g., June 16,

 1975 hearing,

R.

7;

 Sept.

8,

1976

hearing,

R.

15,

 21, 26).

 A prima facie case on Count III, unanswered

by Respondent,

 is thus made.

—

309

—4—

Inasmuch as Counts

 II and III have been proved both by default

and by substantive testimony and evidence,

 we feel that a penalty

is warranted for the violations

 shown.

 With regard to the air-

related violations, we have before us no matters

 in mitigation.

Although the exact nature of the operations on the site may have

changed or may be changed,

 such operations will nonetheless continue,

(Sept.

8,

 1976,

R.

33)

 A penalty should be set which will insure

that such operations are carried on in compliance with the Act and

this Board’s Regulations.

 For the air permit violations

 in Count

II, we shall

 impose a penalty of $1,000.00 to further the purposes

of the Act and to safeguard the integrity of the permit system.

For the substantive air pollution violations

 in Count

III,

 we find

that a penalty of $4,000.00

 is appropriate,

 by virtue of the

environmental damage caused by past operations, and

 to prevent

future violations and encourage compliance with the Act.

We shall,

 in addition, Order that Respondent cease and desist

all operations

 on the site unless all appropriate permits have been

received from the Agency within

 90 days of the date of this Order.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:

1.

 Respondent Harold D.

 Woods, General Partner, d/b/a St. Ellen

Land Company,

 is found to have operated a mine site without a permit

from the Environmental Protection Agency,

 in violation of Section 12(b)

of the Environmental Protection Act and Rule 201 of Chapter

 4: Mine

Wastes,

 of the Pollution Control Board Rules and Regulations,

 from

April

8,

 1974 up to and including April

23,

 1975.

2.

 Said Respondent

 is found to have operated at said site

certain equipment constituting an emission source without

the

required permit

from

the

Environrnen

t:n I

 ProLeuL

ion

 1\leflcy,

i n

violation

 of Rule

 9(b)

 of the Environmental Protection Act,

and

Rule

103 (h)

(2)

Chapter

Air

 Pollution,

ol

 Ll’uis

 Hoard’s

 Rules

and Regulations.

3.

 Said Respondent’s operations on said site are found

to

have caused air pollution,

 in violation of Section 9(a)

 of the

Environmental Protection Act

and Rule

102 of Chapter

 2: Air Pollution,

of this Board’s Rules and Regulations,

 —310

—5—

4.

 Respondent shall pay as a penalty for the above violations

the sum of Five Thousand One Hundred Dollars

 ($5,100.00),

 (constituting

a penalty of $100 for the violations

 in paragraph

1,

 above,

 a penalty

of $1,000 for the violations

 in paragraph

 2, above,

 and a penalty of

$4,000

 for the violations

 in paragraph

3,

 above), payment

 to be

made within thirty-five

 (35)

 days of the date of this Order by

 certified check or money order to:

Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

 Illinois

62706

5.

 Respondent shall cease and desist all operations on said

site unless and until all appropriate permits

 for such operations

have been received from the Environmental Protection Agency within

ninety

 (90) days of the date of this Order.

Mr. James Young abstained.

I,

 Christan L.

 Moffett, Clerk of the Illinois Pollution

Control

 Board

 hereby cort

i

the

above

i

and

 ()rcIor wore

adopted

on

the

day

December,

1976,

 vote

of

~—O

~stanL,~1offeGlerk

Illinois Pollution Control Board

24

—

311