ILLIUOXS
POLLUTION
CONTROL
BOARD
March
22,
1973
ENViRONMENTAL
PROTECTION
AGENCY,
)
)
Complainant,
)
)
vs.
)
PCB
72—403
)
Pj~epUCj;PS MINING
INC.:
HOLLY
)
‘4IN1NC;
CORPORATION,
RIALTO
COAL
)
Si~L!:SCORPORATION
AND
ORLM4
COX,
)
)
Respondents.
?‘r. Dcii;ert Ilaschen’eyer, Assistant Attorney General for the EPA
Mr. Paul T. Austin and Mr. Paul I. Fleming, Attorneys for Respondents
Holly Mining Corporation, Producers Mining,
Inc.
and
Rialto
Sales Corporation
~4r.Jack Williams, Attorney for Respondent Orlan Cox
(WiN ION
AND
ORDER
OF THE BOARD
(by Mr. Henss)
This
case
deals
with
the property known as Holly Mining Site #1
located
near Tunnel Hill in Johnson County.
Respondent Cox, owner
of the land,
leased the property in Juno, 1970 to Rialto Coal Sales
Corporation and Producers Mining Inc. who in turn leased to Holly
Mining Corporation.
The Environmental Protection Agency filed its Complaint on
October 13, 1972 alleging that the three corporate Respondents:
a)
caused, threatened or allowed the discharge of acid mine water,
coal fines and metals on March 17, 1971, May 19, 1971, October 6,
1971 and December 27, 1971 so as to cause water pollution of Cedar
Creek and an unnamed tributary of Cedar Creek in violation of
Section 12(a) of the Act,b) deposited coal stock piles on the land
in such a place and manner so as to create a water pollution hazard
in violation of Section 12(d) of the Act;
c) caused coal fines,
which settle and form objectionable sludge denosits, to be present
in the unnamed tributary and Cedar Creek in violation of Rule 1.03(a)
and
Cd) of SWB-l4.
The Agency aileges that Rialto and Producers
Mining activoly mined the pro~erty as lessors, knew or in the
exercise of ordinary care should have known that Holly’s activities
could cause water pollution; and had a responsibility to prevent
hart to the public resulting from such activity.
Respondent Cox
was alleged to he?e failed to exercise ordinary care as owner to
prevent water pollution and was charged with a virtlation of
Section
12(a)
of
t’e
Act.
7—.373
—2—
Numerous motions must be resolved before
the
substantive
aspects of
the case can be decided.
Motions to Dismiss were
filed on behalf of all Respondents.
The Motion on behalf of
Respondent Cox alleges that:
the Agency Complaint fails to
state
a cause of action as
a matter of
law;
the Complaint
fails
to allege any act or omission to act on the part of Cox;
the Complaint states conclusions without
any
supporting ultimate
facts; and the Environmental Protection Act
(specifically,
Sections
31,
32 and 33)
is unconstitutional.
Respondent Cox asserts that the Illinois Pollution Control
Board was vested by Section
31 of the Act with absolute and
arbitrary discretion in violation of Article
IV,
Section 1 of
the Illinois Constituion;
Section 31,
32 and 33 attempt to give
judicial powers to an administrative board in violation of
Article VI,
Section 1 of the Illinois Constitution; the Act
violates the due process clause, Article
I, Section
.2 of the
Illinois Constitution in that Respondent
is denied a full hearing
before a single judge, master or other tribunal whici~~may see the
witnesses, weigh the testimony and determine their credibility;
thu Act deprives defendants of
a
jury trial
and
that
only a jury
is
entitled to determine the amount of any penalty to be assessed
aeainst Defendant.
We find Respondent fox’s Notion for Disrni~u~alin a~).respects
without
merit.
The
Complaint specifically cheryes Ccx
ith
ownership
of
the
property
in
question.
Count
4
ailu~es
that,
as
owner
of
the
property,
Cox
knew
or
in
the
exercise
of
ordinary
care should have known, that the activities ol
the
Companies
to
which he leased the property could result in water pollution.
Four specific dates are listed on which Section 12(a)
of the Act
was alleged to have been violated by Cox.
Board Procedural
Rule 304(c)
states:
“The Complaint shall contain a reference to
the provisions
of the law or regulations of which the Respondents
are alleged to be in violation;
a concise statement of the facts
upon which the Respondents are claimed to be
in violation;
and a
concise statement of the relief which the Complainant seeks.”
We
believe the Agency Complaint complied with these provisions.
Complainants are required by our Rules
to prove their cases not in
the Complaint,
but during the course of
a public hearing.
The constitutional issues presented have all been previously
considered and denied
(EPA vs. Granite City Steel, PCB 70-34;
EPA vs. Modern Plating Company, PCB 70—38
and. 71-6).
More recently,
the Illinois Appellate Court
(3rd District)
denied the appeal of
C.
M. Ford who had been penalized $1,000 for land pollution
violations
(PCB 71-307) and had raised the same arguments.
The final issue raised by Respondent Cox deals with liability
of the landowner to prevent pollution in Illinois.
The lease does
7
—
374
—3—
not relieve him of the obligation to comply with the
law.
Section 12(a)
of
the
Act provides that no persons shall
“cause,
threaten or allow the discharge of any contaminants
into the
environment so as
to cause or tend
to cause water pollution in
Illinois...”
(emphasis added).
For not prohibiting or controlling
such polluting activities on land where he exercises
a landowner’s
normal rights, the owner must share liability.
When it is within
his power to abate or prevent the pollution and he fails to do ~o,
it
is
fair
to
say
that
he
“allowed”
it.
The
Board
remains
of
the
opinion
that
the
Act
is
constitutional
and
for
the
additional
reasons
stated
above
denies
all
Motions
to
Dismiss.
A Motion to suppress evidence illegally obtained was filed
on 1ehalf of Producers Mining,Holly Mining and Rialto.
The
evidence gathering activities they complain of all occurred in
1972 and do not reflect on this Complaint.
Without deciding on
the merits of the allegations we deny
the
Motion
as
moot.
At the close of testimony on behalf of the Environmental
Protection Agency,
a Motion
to Dismiss Respondent Ccx because of
~ailu~:e
to
provide
ownership
was
filed.
Robert
Lane,
President
of Riali~o, testified as an Agency witness that Rialto and Producers
had a lease for the property from Cox
(Jan.
1973,
R.
28).
This
testimony and the lease agreement imply ownership and we deny the
hotion
to Dismiss.
Also,
both Respondents moved for
a directed
verdict on the grounds that the Agency had failed to prove its
case.
We deny all Motions filed at the close of the EPA case.
Testimony reveals
that Rialto and Producers obtained a
joint
lease from Cox on June 30, 1970 for land said to contain low
sulfur coal.
This land was later leased to Holly Mining Company,
with financial backing from Rialto for mining of the coal.
After
producing a nominal amount of coal,
the President of Holly Mining,
Mr. Charles Hallett, disappeared.
Producers Mining became in-
solvent.
Rialto,
holding worthless stock of Producers Mining and
having secured notes on the financing of equipment for Holly,
alleges that it suffered the loss of a large sum of money, although
the exact amount was not disclosed.
After disposing of the
equipment,
Rialto engaged the services of Big Ridge Coal Company
to complete coal stripping and provide reclamation.
Big Ridge
started its work subsequent
to the dates of the Agency investigation.
Agency Investigator Gordon testified that he visited the site
on March
17,
1971.
He observed a ~aterv discharge flowing from
a coal pile on the northeast side of the site and another discharge
from a water pit on the northwest siJe
(Jan.
1973,
R.
54).
Gordon
testified that about 10 gallons per minute cumulate flow discharged
7
—
375
t~rcm the
site
and
t~1oued
in
a
northeast
direction
toward
Cedar
Creek
(Jan.
1973,
P~
55).
Samples
were
taken
from
both
discharge
moints.
However,
Gordon
did
not
ascertain
on
this
date
that
the
discharge
waters
actually
reached
the
unnamed
tributary
or
Cedar
Creek
(Jan.
1973,
H.
62)
and
did
not
sample
the
tributary
or
Cedar
Creek.
Another Agency
Investigator inspected the site
on
Nay
19,
1971.
investiciatordiahop
testified
that
he
observed
drainage
from
the
coal pile located on the east side of
the site.
Evidence
indicates
that
the
only sample taken on this date was of
the
drainage from
the water pit
on the west side.
Bishop returned on
October
6,
1971 an3
observed
the drainage from the east side coal
pile,
frau which
he
took
a sample.
He
testified that the coal
pile appeared
to be ~
~sourceof the discharge
(R.
86)
and that
he
observed
no
flow above
the coal pile.
Bishop testified that he
obse:rvad light orange colored water and deposits at the confluence
of the mine drainage stream and the tributary
(R.
92).
Photographs
taken at the site appear to substantiate the testimony concerning
the colored water discharge and deposits in the stream bed.
Atrorneys for Respondents vigorously objected to the introduction
of the photographs on the basis that they were isolated photo-
graphs, and did not show
a single overall photograph of the mining
operation.
The investigator identified the exhibits as photogramhs
of the Respondent’s property and therefore they are admissable.
Investigator Bishop returned to the site on December 27,
1971
and took additional photographs and a number of water
samples.
Two of the EPA’s
laboratory samples raise serious doubt of the
validity of the Agency charges.
A comparison of the quality of
Cedar Creek about 300 feet above the mine site and about 300
feet below the alleged discharge points reveals
the following:
Analysis
Above
Below
Ph
4.8
5.6
Total Solids
188 rng/l
162 mg/l
Iron
0.6
“
0.2
“
Manganese
1.3
0.6
Sulfate
110
“
95
Hardness
98
84
Alkalinity
4
Total Acidity
36
20
“
In all cases the water quality improved below the mine.
In that
area there were no other discharges
to Cedar Creek
(EPA Exhibit #13).
This paradox was not discussed during Agency testimony and neither
was the fact that investigators sampled Cedar Creek only once
during the entire period of alleged violations.
7
—
376
*
Testimony
was
introduced
that
some
earlier
mining
activity
had taken ulace
at
the
site.
Apparently
some
exploratory
mining
had
been
performed
:Ln
1965
by
a
person
identified
only
as
John
Weibel,
Were
it not for the testimony
of Investigator
Bishop
that he
had
observed
orange
water
and
bottom
deposits
at
-the
confluence
of
mine
discharge
and
tributary
to Cedar
Creek
we
would
be
inclined
at this
point
to find
in
favor
of
Respondents
based on
the
Acjency~s
own
evidence.
Mr.
Charles
Medvick,
Land Reclamation Division of the
Illinois
Department of Mines and Minerals, testified that he had visited
the site on June 20,
197
in the
company of officials from Rialto
and
Big Ridge
(H,
203)
.
This meeting was held
at
the request of
the officials
in
order to
determine
the
work
needed pursuant to
the surface mining
laws.
Subsequent visits
and
a $2,000 performance
bond led
to the approval of
a reclamation
plan by
the Department
of
Mines and
Minerals
on
January
2,
1973.
Mr. Medvick testified
that
he was
satisfied that
the
operator has
a reasonable opportunity
to achieve his plan
(Jan,
1973,
R.
214).
The
Board also notes that
reclamation activities were started some four months before the
Agency Complaint
was
filed.
Orlan Ccx testified that according to the lease agreement he
was
to have received 35~per ton of coal but that he had in fact
not received his first 35~ (R,
231)
*
However,
there was no
testimony that
Mr.
Cox would not receive payment in
the
future.
Ccx admitted that he had not visited the site for at least a year
before receiving the Agency Complaint
(H.
232).
This reveals his
indifference to the method of mining and the possibility of
pollution from the mine.
It
is the Opinion of this Board that Respondents Producers
Mining,
Inc., Holly Mining Corporation and Rialto Sales Corporation
are guilty of violations of Rule
1.03(a)
and
(d)
of SWB—l4 and
Section 12(d)
of the Act for creating a water pollution hazard.
We are of the opinion that a violation of Section 12(a)
of the
Act was not proven by the Agency.
There was not sufficient proof
that
contaminants were actually discharged so as to cause water
pollution.
Since,
the only charge against Orlan Cox was for
violation of that statute we are compelled to dismiss
the action
against him.
We
believe that only nominal
fines are justified by the weight
of evidence presented.
Considering all the facts, we assess a
fine of $500 each against Holly Mining Corporation,
Producers
Mining,
Inc.
and Rialto Coal Sales.
These fines are in addition
to the clean up and reclamation provisions required in our Order.
7
—
377
—6—
ORDER
It is ordered that:
1.
All
charges
against
Respondent
Orlan
Cox
are
dismissed.
2.
Holly
Mining
Corporation
shall
pay
to
the
State
of
Illinois the sum of $500 for the violations found
in this proceeding by April
20,
1973.
Rialto Sales
Corporation shall pay to the State of Illinois the
sum of $500 for violations found
in this proceeding
by April
20,
1973.
Producers
!‘Iining,
Inc.
shall
pay to the State of Illinois the sum of
$500 for
violations found in this proceeding by April
20,
1973.
Penalty payment by certified check or money
order payable to the State of Illinois shall be
made to:
Fiscal Services Division,
Illinois EPA,
2200 Churchill Drive,
Springfield, Illinois 62706.
3.
Respondents shall cease and desist from all violations
found in this Opinion.
4.
Holly Mining Corporation and Rialto Coal Sales
Corporation shall submit to the Environmental Protection
Agency,
a program for the abatement of pollution found
in this Opinion, within
35 days from the date of this
Order and shall file monthly reports with the Agency
detailing progress toward completion
of its abatement
program.
I, Christan L. Moffett, Clerk of
the Illinois Pollution Control
Boardô hereby certify the above Opinion and Order was adopted this
________day
of March,
1973 by a vote of
q
to 0
7
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378