ILLINOIS POLLUTION CONTROL BOARD

February 14, 1975

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 72—332

LEE KIDD,

Respondent,

MR. DELBERT

HASCHEMEYER,

appeared on behalf of the Environmental

Protection Agency;

MR. DAYTON L. THOMAS, appeared on behalf of Mr. Kidd.

OPINION AND ORDER OF THE BOARD (by Mr. Dumelle):

The Environmental Protection Agency (Agency) filed a

complaint on August 8, 1972 alleging that Mr. Kidd had

violated the Environmental Protection Act (Act), Sanitary

Water Board’s Rules and Regulations (SWi3) and the Water

Pollution Regulations. Two days of hearing were held in

Harrisburg, Saline County, on September 27 and October 31,

1972. An Interim Opinion and Order of the Board was issued

on December 5, 1972 which requested that the parties submit

recommendations as to a course of action and/or penalties

the

Board should consider in this case. On February 6,

1973, the Agency submitted a recommendation on the course of

action pursuant to the Interim Opinion and Order.

The Agency alleges that Mr. Kidd has caused, threatened,

and

allowed the discharge of certain mine wastes so as to

cause water pollution in violation of Section 12(a) of the

Act, to form an objectional sludge deposit in violation of

Rule 1.03(a) of SWB—l4 and Rule 203(a) of the Water Pollution

Regulations, to have caused toxic concentrations or com-

binations of subtances in violation of Rule 1.03(d) of SWE-

14 and Rule 203(a) of the Water Pollution Regulations, and

to have caused the pH to drop below 6.0 in violation of Rule

1.05(b) of SWB—14 and Rule 203(b) of the Water Pollution

Regulations.

15—429

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—2W-

Mr. Kidd owns approximately 560 acres of land located

in Saline County (R. 52). The land in question was formerly

owned by the Blue Bird Coal Company (R. 70). Both underground

and surface mine operations were conducted on the site. In

addition to the mines, Blue Bird operated a coal washing

facility on the site until 1957 (R. 70). Mr. Kidd testified

that Blue Bird Coal Company asked him if he wanted to buy

the Blue Bird mine site back in 1957 (H. 70). Mr. Kidd

proceeded to purchase the land in question in 1957 from the

Blue Bird Coal Company. Mr. Kidd purchased a quit claim

deed in the property for $3,500.00 (H. 75)

.

Mr. Kidd paid

the Blue Bird Coal Company $1,000.00 down and signed a note

for the remainder. In return, the Blue Bird Coal Company

executed a quit claim deed to Mr. and Mrs. Kidd (Agency

Exhibit 18). Subsequently, Mr. and Mrs. Kidd were divorced

without a property settlement (R. 71). Therefore, Mrs. Kidd

apparently owns one-half of the property in question (R.

71)

The Blue Bird Coal Company sought and obtained an

easement from Mr. and Mrs. Kidd to allow it to remove coal

washer reject deposits, carbon or sludge from the strip pits

(Respondent Exhibit 4). On December 1, 1957, Mr. and Mrs.

Kidd granted Blue Bird Coal Company an easement to allow

Blue Bird access to the New York Central Railroad right-of-

way, which ran across the land (Respondent Exhibit 3) Both

of these easements were to last for a period of ten years.

Blue Bird Coal Company described the washer rejects and

carbon located in the strip pits as personal property belonging

to Blue Bird Coal Company (Respondent Exhibit 4).

Mr. Kidd farms approximately 100 of 560 acres he purchased

from Blue Bird Coal Company (R. 53). In addition to this

farming, Mr. Kidd conducts a trucking business (R. 53).

Part of Mr. Kidd’s business activities is salvaging carbon

or coal slurry from the abandoned mine area on his property

(R. 53). Mr. Kidd removed approximately 15,000 tons of

carbon during both 1970 and 1971 (R. 59). Mr. Kidd used a

bulldozer to push the carbon into an area where he could

load it with the use of a drag-line onto trucks (R. 55). As

part of this operation, Mr. Kidd pumped water, from what

called the carbon salvage pit, between two dams which he

constructed (H. 57 and 58). Mr. Kidd testified that he did

not pump very much water because he stayed above the water

line when removing carbon (H. 59).

Mr. Armen Asaturians, an Agency surveillance engineer,

conducted five days of surveillance and sampling on Mr.

Kidd’s property. Mr. Asaturians collected water samples on

15—430

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—3—

each of these five days from various points on the land

owned by Mr. Kidd and in the water courses as they left Mr.

Kidd’s property. Agency Exhibit I contains a sketch prepared

by Mr. Asaturians which is useful in examining the points

from which water samples were obtained, photographs taken

and understanding testimony which utilized this exhibit.

Three drainage courses lead from Mr. Kidd’s property in

question. An examination of Agency Exhibit 1 shows that one

watercourse, which drains the eastern portion of the refuse

pile, extends from Agency sampling point 8 through Agency

sampling point 6 where the watercourse passes under a public

road. A second drainage area drains the impoundment behind

a dam located at Agency sampling point 3 and extends west

and south to Agency sampling point 4. This second drainage

area represents surface drainage from the western portion of

the refuse pile. A third drainage area extends from the

overflow of the water backed up behind the dam located at.

Agency sampling point 3. This overflow flows south along

the western portion of the refuse pile into a strip pit

marked with the letter M on Agency Exhibit 1, From this pit,

the drainage flows under an east-west public road through a

culvert marked P on Agency Exhibit 1. Drainage then enters

what is labelled the carbon salvage pit. Mr. Kidd has

constructed two dams across the carbon salvage pit which are

located with the letters A and B on Agency Exhibit 1. The

lower portion of the carbon salvage pit is the location of

Agency sampling point 11. Drainage from the carbon salvage

pit and from the strip pit marked with the letter Q combine

at what is Agency sampling point 9 in the southeastern

corner of Agency Exhibit 1. From this point drainage flows

beneath a public road eastward past what is Agency sampling

point 10. From an examination of Agency Exhibit 1 it is

clear that water quality samples taken at Agency sampling

points 3, 6, and 10 would indicate the quality of water

which passes from land owned by Mr. Kidd in each of the

three drainage areas. An analysis of Agency Exhibits 2

through 6, shows that the water quality samples taken at

these three sampling points all have the following range

in characteristics:

pH

2.6 to 2.7

Iron

170 to 2,100 ppm

Manganese

20.2 to 66.4 ppm

Free Acidity

300 to 2,02 ppm

Total Acidity

1,060 to 7,350 ppm

Total Hardness

1,260 to 1,700 ppm

Specific Conduct-

ance

3,700 to 16~00Q micromhos

Total Solids

4,900 to 14,000 ppm

Sulfate

2,600 to 8,700 ppm

15—431

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—4—

In addition to water quality samples, Mr. Asaturians

also took numerous photographs at the various sampling

points indicated on Agency Exhibit 1. The location of the

various photographs which were admitted into evidence are

indicated in blue with the Agency Exhibit number inside a

circle on Agency Exhibit 1. An examination of these photographs

shows bottom deposits varying from yellow to rusty orange in

the watercourse which flows through the carbon salvage pit

and black bottom deposits in the watercourse that flows

east from the refuse pile (Agency Exhibits 11, 15, and 17).

Agency Exhibit 13 depicts a pump located at the upper dam

on the carbon salvage pit. Agency Exhibit 14 shows a pump

located at the lower dam on the carbon salvage pit. Mr.

Asaturians testified that on July 1, 1971 the pump depicted

in Agency Exhibit 13 was operating and discharging water

into the area between the two earthen dams and was flowing

out of a small opening located in the lower dam depicted in

Agency Exhibit 14 (H. 32).

Because of the essentially unrebutted testimony presented

by Mr. Asaturians, the water quality samples taken, and the

photographic exhibits, the Board finds that the Agency has

established that violations of Section 12(a) of the Act

occurred. Mr. Asaturians’ testimony and the photographs

which show the yellowish, rusty-orange and black colored

bottom deposits establish that a violation of Rule 1.03(a)

of SWB-l4 and Rule 203(a) of the Water Pollution Regulations

also existed. The water quality analyses submitted establish

that a violation of Rule 1.03(d) of SWB-l4 and Rule 203(a)

of the Water Pollution Regulations occurred in that the

values reported are in a range which are toxic to aquatic

life. Water quality samples taken also establish that the

pH in the water-course was below 6.0 which establishes a

violation of Rule 1.05(b) of SWB-l4 and Rule 203(b) of the

Water Pollution Regulations.

Having found the above violations to have occurred, the

Board weighed the evidence presented to determine if Mr.

Kidd had caused, threatened, or allowed the discharge, (the

mine waste,) so as to be responsible for the above violations.

Three water courses flow from Mr. Kidd’s land (Agency Exhibit

1). In examining whether Mr. Kidd has caused, threatened,

or allowed the violations which exist in each of the three

waterways, the Board will treat each waterway separately.

In a decision upholding the Board’s finding of a violation

of Section 12(a) of the Act by an owner of the surface of

land from which acid mine drainage was flowing from a mine

refuse pile, the Fifth District Appellate Court held that,

“the unquestioned pollution (acid mine drainage) proves

sufficiently that the petitioner allowed the discharge

15 —432

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—5-.

within the meeting of Section 12(a)” (Meadowlark Farms,

Inc. v. Pollution Control Board, 17 Ill. App. 3d

851, 858, 308 N.E. 2d 829, 836 (February 22, 1974))

In a subsequent case the Fifth District applied the Meadowlark

test and upheld the Board’s finding that a respondent

allowed a violation by stating that:

“the discharges were accidental and not intentional, or

that they occurred in spite of Petitioner’s efforts to

prevent them, is not a defense as urged by Petitioner”

(Freeman Coal Mining Corp., v. Illinois Pollution Control

Board, 313 N.E. 2d 616, 621, (June 28, 1974)).

Applying the Meadowlark and Freeman decisions to the

present case, the Board finds that Mr. Kidd had a quit claim

deed to the property in question and paid the taxes on the

property (R. 71 and Agency Exhibit 18). Mr. Kidd owned or

exercised control over the surface from which the acid mine

drainage occurred in the drainageway which flows in a north

and east direction from refuse pile. Thus, the Board finds

that Mr. Kidd allowed the violations to occur in this

drainageway. The Board also finds for these same reasons

that Mr. Kidd has allowed the violations to occur in the

drainageway which flows from the western side of the refuse

pile in a west and south direction. In addition to the

ownership or control of the surface, the record clearly

establishes that Mr. Kidd has operated a pump which enlarged

the flow of the grossly polluted water from the carbon

salvage pit to the drainage area that flows in a south and

east direction from Mr. Kidd’s property. In addition, Mr.

Kidd has constructed two dams and engaged in carbon salvage

operations in this drainage area. For these reasons, the

Board finds that Mr. Kidd has caused and allowed the violations

to occur in this drainage area.

In the prior Interim Order, the Board asked the Agency

to examine the possibility of bringing the former owner,

Blue Bird Coal Company, before the Board. Several questions

remain unanswered in this record in that the relationship

between Blue Bird Coal Company and Mr. Kidd is not very

clear. The record establishes that Mr. Kidd worked for Blue

Bird Coal Company for a number of years prior to the closing

of the mine in 1957. Blue Bird Coal Company asked Mr. Kidd

if he wanted to buy back the land in question. Blue Bird

Coal Company sought and got two easements for undetermined

consideration. Blue Bird Coal Company described the coal

slurry or carbon as personal property, and yet Mr. Kidd

proceeded to remove and sell the coal. Rather than order

Blue Bird Coal Company to be brought in as a party and.

remand the case for further hearing, the Board has decided

to terminate the present proceedings and leave any future

litigation regarding this site open to a new proceeding.

---

In the prior Interim Opinion and Order, the Board found

that the cost of correction was an impossible cost for the

Board to require of a person of Mr. Kidd’s economic status.

The Agency admitted that an abatement program for the entire

460 acres would be beyond Mr. Kidd’s financial means (Agency

Recommended Course Of Action). Having fully considered all

the facts and circumstances bearing upon the reasonableness

of the discharges to the three tributaries, in accordance

with Section 33(c) of the Act, the Board finds that Mr. Kidd

should cease and desist from any future carbon salvage

operations without complying with existing environmental

regulations, including the obtaining of necessary permits

from the Agency. The Board agrees with the Agency’s recommendation

not to assess a penalty in this case.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

The Pollution Control Board hereby finds Mr. Kidd to

have violated Section 12(a) of the Environmental Protection

Act; Rules 103(a),

(C),

and (d) and Rule 105(b) of SWB-l4;

and Rules 203(a) and (b) of the Water Pollution Regulations.

Mr. Kidd is hereby ordered to cease and desist from

further carbon salvage operations without obtaining necessary

permits from the Environmental Protection Agency.

IT IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order

were a1dopted on the

/&/~

day of February, 1975 by a vote

of

~(I..p

Q4~

Christan L. Moff

6~

Clerk

Illinois Pollution Control Board