ILLINOIS POLLUTION CONTROL BOARD

September

15,

1976

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 75—353

EDWARD H. WEIDE,

Respondent.

DISSENTING OPINION

(by Mr.

Zeitlin)

In its Order today, denying the Environmental Protection Agency’s

Motion

to Reconsider certain portions of the principal Opinion and

Order

in this case entered June 18,

1976,

I feel that the Board erred

in the following respects:

1.

The Board apparently compounds what it feels

may be

a problem of accuracy with regard

to the Depart-

ment of

Conservation’s

valuation of fish kills.

The

Board states that the Department of Conservation’s

“Standard Method’~was,

(a) not before us and therefore

we were unable to evaluate the reasonableness of the

method,

and

(b)

is not sufficiently reliable

in this

case.

Nonetheless, the Board seems

to arrive at its

own method of valuation for fish kills by statistical

manipulation of just that “unreliable” method.

2.

The Board fails

to acknowledge the value of

and

need

for

the

Department

of

Conservation

in

the

protection of the environment when

it

says

that,

“tjhe

unique expertise of the Department of Conservation ends....”

The Board’s substitution of

its own experLise

for that

of

the

Department

of

Conservation

is

not

warranted by the

facts

in

this

case.

While it

may

indeed

be

that

the Record

in

this

case

fails

to

set forth clearly the basis for the Department of Conservation’s

expertise, the answer

is not to deny its existence.

On the contrary,

the answer is

to admit to the Department of Conservation’s expertise

by remanding this matter for clarification of the manner

in which

that expertise has been applied to the problems of this case.

Substitution of our own “guesstimate” as

to the reasonable number

and

value

of

dead

fish

cannot

substitute

for

further

hearing(s)

to

specifically

consider

the

basis

and

validity of the Department of

Conservation’s

“Standard

Method.”

23—461

---

—2—

In summary,

I feel that the Board’s imposition of an apparently

arbitrary valuation to the fish killed here is

-

at best

-

no more

accurate than the valuation assigned by the Department of Conservation.

The proper procedure here would be to use the Hearing mechanism to

allow the Board to determine the proper methodology to be used in

arriving at the final remedy in this case.

I respectfully dissent.

Philip

Z

Member o~

rd

I,

Christan L.

Control

submitted on the

day

of

Clerk of the Illinois Pollution

Opinion was

976.

Illinois

Pollution

ci

I3oard

23

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