ILLINOIS POLLUTION CONTROL BOARD

July

10,

1975

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

 PCB 74—291

FERNDALE HEIGHTS UTILITIES CO.,

)

Respondent.

Steven Weiss, Assistant Attorney General for the EPA;

Daniel Kucera and John Pander Zries, Attorneys for Respondent.

DISSENTING OPINION

 (by Mr. Goodman)

 (Concurred

 in by Mr.

 Zeitlin):

The Board today issued an Opinion and Order -in PCB 74-

291.

 In this Order the Board noted that Respondent, Ferndale

Heights Utility Company, had violated Rule

 102 of the Noise

Regulations,

 and Section 24 of the Environmental Protection

Act,

 and assessed

the

sum

of

 $500

as

 a penalty for the

violations.

 While

 I am in agreement with the majority of

the Opinion and Order of the Board in this matter,

 I must

respectfully dissent from the holding found on page 10 of

the Opinion which reads as follows:

It is the Board’s Opinion that a Rule

102

violation may be found in the absence of any noise

survey data but where such data is presented and

compliance with Rule 202 is proven, neither a Rule

202 nor a Rule 102 violation may be found.

This holding, in my opinion, not only flies

 in the face

 of precedent, which has been well established in air pollution

and water pollution cases, but also Section 49

 (e) of the

Environmental Prctection Act and the intent of the Board

when adopting the Noise Regulations.

 See also Illinois Coal

Operators Association

 v. Pollution Control Board,

_______

Ill.

2nd

______,

 319 N.E.

 2nd 782

 (Supreme Court No. 46413,

May,

 1974)

The general rule in pollution cases has been that a

violation of a general regulation may be found even though

the alleged violation falls within the numerical limits of

a

specific regulation.

 The reason

 for this rule is the realization,

by the triers of fact,

 that specific numbers

 in specific

18

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—2—

rules cannot hope to cover all situations.

 This is also the

reason why

 a general provision exists with the proviso that

compliance with a specific regulation will act as

 a prima

facie defense to a violation of the general regulation.

The

prima

 facie defense provision recognizes that, however well

written,

 the specific rule can never cover certain situations

wherein justice demands relief be granted notwithstanding

the fact that the violation does indeed meet the numerical

 standard.

This

 is precisely the situation in this case.

The

Board, in the Opinion accompanying the promulgation of the

Noise Pollution Control Regulations,

 In Re Noise Pollution

Control Regulations, R72-2

 8 PCB 703

 (1973)

 specifically

stated, with respect to Rule 102,

 that,

 “this

is

 a standard

nusaince-type regulation comparable to that appearing in the

statute with respect to air and water pollution,

 that could

apply irrespective of compliance with,

 or violation of,

any

regulation based on numerical limits”.

 It is, therefore,

obvious that the intention of the Board, when adopting the

noise regulations, was to find that compliance with specific

numerical standards need not constitute

 a complete defense.

The State Legislature,

 in recognition of this problem,

saw fit to include Section 49(e)

 in the Environmental Protection

Act which states that compliance with the rules and regulations

promulgated by the Board,

 under the Act, shall constitute a

prima facie defense to any action for violation of the Act.

The Board, in enacting Rule 102, was merely following the

lead of the legislature

 in adopting a provision which would

cover the occasional case that might arise wherein compliance

with numerical standards nonetheless works an injustice upon

the public.

In

 the last analysis,

it

 is the courts to whom the

Board must look for guidance where the intent of the legisla-

ture might appear unclear.

 We are fortunate in this case to

have such guidance by the Illinois Supreme Court.

 In Illinois

Coal Operators Association v. Illinois Pollution Control Board,

(Supra)

 the court held:

We read

 (Rule

 102)

 as prohibiting emissions

that unreasonably interfere

with

life or activity,

whether such emissions may be said to violate

Section 24 generally or whether they are emissions

which more specifically may be said to violate

a

particular Board Regulation

 (referred to

 in Section

24) by exceeding,

 for example,

 the maximum per-

missible decibels which may be by

 a regulation

emitted to

 a certain classification of land.

—

—3—

The intent of this holding seems clear i.e.,

 that the

prohibition is against emissions that unreasonably interfere

with life or activities.

 Nowhere does the Court state that

unreasonable interference with life or activities is not

deemed to be prohibited solely upon a showing that the

emissions meet the maximum permissible decibels which may

be, by regulation, emitted to a certain classification of

 land.

Thus we have the following situation wherein

1)

precedent

indicates that violation of

 a general regulation may be

found notwithstanding compliance with

 a more specific regulation;

2)

 a Board Opinion, written specifically to interpret Rule

102, states that a violation could be found notwithstanding

compliance with a specific regulation;

and

3)

 a Supreme

Court opinion which supports the first two premises.

 In the

face of all this,

 the majority, in the Ferndale Opinion,

decides to the contrary.

 It is regrettable that,

 as in

other aspects of life,

 a regulation cannot be written that

will absolutely guarantee that compliance with a set of

numbers will be an absolute defense for prosecution against

pollution.

 However,

 such a regulation would have numbers so

tightly drawn

 as to be meaningless from a practical standpoint.

The method used to resolve this seemingly impossible problem

is to develop numerical regulations that make practical

sense for most cases supported by a general regulation which

will allow the Board,

 in selected cases,

 to find a violation

where justice dictates it must.

 The status of prima facie

defense

 is as far as the Board can logically extend the

protection which a specific numerical compliance given in a

proceeding for a violation of a general regulation.

I must,

 therefore,

 respectfully dissent from the majority

holding

which,

 in effect,

makes compliance with Rule 202’s

numerical numbers

 an absolute defense

 llegation of

violation of Rule

 102.

I, Christan

 L. Moffett, Clerk of the Il!inois Pollution

Control Board,

 hereby certify the above Dissenting Opinion

was submitted on the

 day of

_______,

 1975.

Illinois Pollution

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