ILLINOIS POLLUTION CONTROL BOARD
June 18,
1975
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 75—191
76—15
WESTERN MINING CORPORATION,
Respondent.
Mr. George Warren Tinkham, Assistant Attorney General,
appeared for the Complainant.
OPINION
AND
ORDER OF THE
BOARD
(by Dr. Satchell):
This consolidated case came before the Board as two
separate cases PCB 75-191,
filed May
5,
1975 and PCB 76—15,
filed January 12,
1976.
The complaint filed by the Environ-
mental Protection Agency (Agency)
in PCB 75-191 alleges that
Western Mining Corporation
(Western),
in violation of
Rule 201 of the Chapter
4:
Mine Related Pollution Rules and
Regulations
(Rules)
and Section 12(b)
of the Environmental
Protection Act (Act), on or about March 26,
1975, without
receiving a permit from the Agency opened a coal mine in the
Southwest Quarter of Section 34, Township 10 South, Range
4
East of the Third Principal Meridian in Williamson County,
Illinois; that from March
28, 1975 to April.8, 1975 the mine
was closed due to a preliminary injunction issued by the
Circuit Court of the First Judicial Circuit, Williamson
County,
Illinois based on a motion alleging Western was
operating without a permit from the Department of Mines and
Minerals; and that from April
8,
1975 up to and including
April 29,
1975 Western operated the mine without a permit
from the Agency in violation of Rule 201 of the Rules and
Section 12(b)
of the Act until enjoined on April
30,
1975
by the Circuit Court of the First Judicial Circuit, William-
son County, Illinois, whereby Respondent was ordered to
desist and refrain from opening its mine without all neces—
sary permits from Complainant.
In PCB 76-15 filed by the
Agency,
the Complaint as amended at the hearing alleges
two separate counts of violations of Rule
606(a) of the Nine
Rules and Section 12(a)
of the Act.
It was further alleged
that Respondent failed to comply with special permit con-
ditions
in violation of Section 12(b)
of the Act and that
Respondent in violation of Mine Rule 501(a) (1)
failed to
notify the Agency within thirty
(30) days of cessation of
all mining or all mine refuse disposal operations that such
22—111
—2—
operations have ceased.
These two cases were consolidated
by Board Order on February 11,
1976.
The Agency filed on May 29, 1975 a Request for Admis-
sion of Facts and a First Set of Interrogatories.
On
March 4,
1976 the Agency filed a second Request for Admis-
sion of Facts.
Western has not responded to any of these
documents.
Under Procedural Rule 314 unless
a response is
filed within twenty
(20)
days after service of the request
for admissions the facts requested are deemed admitted.
Thus the Board deems admitted all the facts contained in
the Requests for Admission of Facts.
These facts include:
Admissions of March
4.
On or about March
26, 1975 Western commenced
opening a coal mine on property located in the
Southwest Quarter of Section 34, Township 10
South, Range
4 East of the Third Principal
Meridian,
in the County of Williamson,
Illinois
(hereinafter, “mine
site”).
Western operated the mine site without an
operating permit issued by the Agency on each
of the following dates:
April
11,
1975
April
17,
1975
April
15,
1975
April
21, 1975
Western continuously operated the mine site
without an operating permit issued by the
Agency from March 26,
1975 to April
30,
1975.
Western was warned by the Agency of the
necessity of obtaining an operating permit
for the mine site on the following dates:
March
27,
1975
March
31, 1975
March 28, 1975
April
11, 1975
March
29, 1975
April
25,
1975
On April
30,
1975, in case number 75—CH—26,
a preliminary injunction was issued by the
Circuit Court of the First Judicial Circuit,
Williamson County, Illinois, ordering Western
to desist and refrain from opening its mine
without all necessary permits from the Agency.
On May 6,
1975 Western was issued Chapter
4
permit number 1975-MD—503-OP for the mine
site by the Agency.
22—112
Western has constructed two settling lagoons
at the mine site to capture and contain mine
runoff.
There
is no treatment of the mine runoff prior
to its discharge from the settling lagoons.
On August
5, 1975 there occurred a discharge
from one of the lagoons which contained the
following concentrations:
iron,
22 mg/i;
pH, 3.6; total acidity,
170 mg/i;
alkalinity,
0
mg/l.
The accumulation of mine runoff in the two
settling lagoons without treatment allows and
threatens the discharge of contaminants into
the environment so as to cause or tend to
cause water pollution in Illinois.
Western’s continuing failure to treat mine
runoff constitutes a continuing violation of
Section
12(a)
of the Act.
On or before June
25,
1975, Western abandoned
the mine site.
Western never notified the Agency of the
cessation of its mining and mine refuse dis-
posal
operations.
Western has abandoned the site without making
any efforts to reclaim the site.
The mine site as abandoned, and presently
existing causes and threatens environmental
damage.
A hearing was held in Marion,
Illinois on April
6,
1976.
Respondent
did
not
appear
at
the
hearing
and
was
not
represented
by
any
party
at
this
proceeding.
The
Hearing
Officer
noted
that he had sent notice of the hearing and that Respondent
appeared to be in default.
Procedural Rule 320 provides:
“Failure of a party to appear on the date set for
hearing, or failure to proceed as ordered by the Board,
shall constitute
a default.
The Board shall thereafter
enter such order as appropriate based upon the evidence intro-
duced at the hearing.”
The Board does find Respondent, Western Mining Corporation,
in default and based on the admitted facts
in violation of all
allegations of both complaints
as amended at the hearing.
(As
allowed by Procedural Rule 328).
22—113
—4—
The
Agency
produced testimony from two witnesses
concerning
the
violations
and
the
environmental
and
economic factors involved.
Mr.
Larry L. Bishop testified
concerning the samples he took at the mine
(Camp.
Ex.
1,2,4).
The overflow from the west settling pond had iron,
22 mg/i;
pH,
3.6; total acidity,
170 mg/i;
alkalinity,
0 mg/i
(Ex.
1).
The discharge from the east settling pond had pH,
4.2;
total acidity 100 mg/I; total alkalinity
0 mg/l
(Ex.
1).
Mine Rule 606(a)
allows iron 7 mg/i;
pH,
5-10; and total
acidity cannot exceed total alkalinity.
The discharges from
these ponds were clearly in violation of the Rules.
Mr.
Bishop testified that he observed on his visits that the
land adjoining the mine area was hilly, semi-wooded with
good vegetation
(R.17).
Mr. Bishop described in detail the
condition of the mine area.
“The site is typical of an old strip mine area in that
it
has
not
been
reclaimed.
There
is
spoil,
overburden
material
which—-that
has
not
been
leveled
out,
seeded or reclaimed in
any
way.
The
analysis
collected
of
water
impoundments
located
within
the
mine area indicates there is acid producing material
exposed.
And
there
is
a
potential
threat
of
pollution.
“The
drainage
stream
below
the
west
settling
basin
is
starting to accumulate an orangish--yellow-orangish colored
deposit indicative of iron deposits as the result of mine
drainage.
“The west settling basin is deteriorated and the over-
flow pipe has fallen approximately four to six feet,
thereby
lowering the water level
in the pond and its capacity to serve
as it was originally intended.
“The east settling basin,
although still intact, shows
erosion below the outflow and will most likely go through
the same deterioration.
(R.16).
In addition there
is
a
large amount of erosion on the subject mine site.”
(R.17).
What little vegetation Bishop observed was volunteer
and not planted by the company
(R.16).
Mr. Marvin M. King,
an aquatic biologist working for
the Agency, also testified.
The discharges from the mine
area flow into Pond Creek to Grassy Creek to the South
Fork Saline River.
Mr. King stated that the waters that
would receive runoff from the mine were clear and grassy
and that the water quality in the vicinity was above average
for the area
(R.27).
Mr. King further stated that acidic
mine waste would alter the biota of the stream
(R.28).
22—114
—5—
Respondent under Section 31(c)
has the burden of
showing that compliance would impose an arbitrary or
unreasonable hardship as related to Section 33(c)
of the
Act.
Respondent by not appearing waives the right to
present
these
factors.
The
Board
must
rely
on
the
infor-
mation provided by the Agency.
Mr. Bishop testified that from his investigations he
has
concluded
that
the
Respondent
was
not
of
good
reputation
in the community.
He had been told that after deserting
the mine,
Respondent did not meet its last payroll or pay
its
royalties
and
that
a
similar
situation
existed
at
Respondent’s
mine
in
Pope
County
(R.20,21).
Bishop
further observed that
the mine was not suited to the location
(R.22).
It is
a
contour mine, stripping around a hill.
Even after the coal
was exposed, it was proven to be very low quality,
low grade
coal
(R.22).
Bishop has seen similar coal mines with similar
water pollution problems which have taken care of the problems
and still remained in business
(R.23).
In
this
case
Respondent
has
shown
blatant
disregard
for
its environmental responsibilities.
Respondent operated its
mine without
a permit, indifferent to warnings by the Agency
until
Respondent
was
enjoined
from
further
operation
by
the
Circuit
Court
of
the
First
Judicial
District,
Williamson
County,
Illinois.
After receiving a permit Respondent pro-
ceeded to violate the special conditions of the permit
which required treating the water to prevent pollution.
Now
Respondent
has
polluted
the
water
and
abandoned
the
mine.
The day of the hearing the waters were still in
violation
of
Rule
606(a)
of
the
Mine
Rules
(Ex.
4).
Until
remedied in some manner this damage will continue and
multiply,
destroying
the
quality
of
some
of
Illinois’
cleaner
water.
The Agency pointed out that in Respondent’s
own permit the Respondent set forth
a means of alleviating
the pollution at this site and that it is obvious that
Respondent
failed
to
take
the
steps
that
it
itself
deemed
reasonable and practicable
(R.3l).
The Board finds that
this
irresponsible
action
warrants
a
heavy
penalty.
The
Board finds that Western Mining is
in violation on each of
the
five separate alleged violations.
The potential fine
is
$10,000 for each violation and an additional $1,000 for each
day during which violation continues, Section 42(a)
of the Act.
A penalty of $12,000 to be paid within thirty
(30)
days of
this order is assessed for the aforementioned violations.
This Opinion constitutes the Board’s findings of fact
and conclusions of law.
Mr.
James
Young
abstained.
22.—115
—6—
ORDER
It is the order of the Pollution Control Board that:
1.
Western
Mining
Corporation
is
in
violation
of
Rule 606(a)
of the Mine Related Pollution Regulations and
Section
12(a)
of
the
Act
and
in
violation
of
Rules
201
and
501(a)
of the Mine Related Pollution Regulations and Sec-
tion 12(b)
of the Act.
2.
Western
Mining
Corporation
shall
pay
a
penalty
of
$12,000
for
the
violations
within
thirty
days
of
this
order.
Payment
shall
be
by
certified
check
or money order
made payable to:
State of Illinois
Fiscal Services Division
Environmental Protection Agency
2200 Churchill Road
Springfield,
Illinois 62706
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control
Board
hereby
cer4.ify
the
above
Opinion
and
Order
were
adopted
on
the
“
day of
~
,
1976 by a
vote
of
~4—t~
Illinois Pollution C
ol Board
22—116