ILLINOIS POLLUTION CONTROL BOARD

September 17, 1987

JOHN DALE?, WILLIAM 0. LIPINKSI,

TIMOTHY DEGNAN, and PATRICK HUELS

for themselves and on behalf of

the residents of the 21st

Representative District, the 5th

Congressional District, and the

11th Senatorial District of the

State of Illinois, arid the 11th

Ward of the City of Chicago,

)

Complainants,

v.

)

PCB 87—132

)

THE CITY OF CHICAGO, a Municipal

)

Corporation,

Respondent.

CONCURRING STATEMENT (by B. Forcade):

I disagree with some of the rationale in the majority’s

order denying a seal, but support the outcome.

Section 34 of the Environmental Protection Act clearly

authorizes the Illinois Environmental Protection Agency

(“Agency’~) to seal a facility upon a finding of immediate danger

to health. Section 34 (b). The language of that Section confers

no authority on the Board to seal a facility. The Complainants

have not provided a legal theory that would confer such authority

upon the Board. Consequently, I would hold that the Board lacks

authority to seal a facility.

Even if the Board had such authority, the Complainants have

not made a factual case for a seal. A seal may only be placed

upon a finding that an immediate danger exists. A finding

implies either an admission or some evidence to support the

finding. At the present time Complainants have presented

neither. The information Complainants provide appear to be

copies of inspection reports and analytical analyses from

government agency files. However, there is no indication that

the photocopies are authentic or that the information they

contain is accurate. In Theresa Castellari, et al, v. John

Prior, PCB 86—79 (May 28, 1987), the Board specifically addressed

the difficulties posed and the relevant law regarding

introduction of documents obtained from Agency files (See pages

12—16). The Board held that exhibits could be admitted as

evidence where there was testimony that the exhibits were indeed

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copies of Agency documents (authenticity). The Board held that

the information contained in the documents must be afforded

lesser weight where the individual who prepared the documents did

not testify regarding their contents (accuracy). Today’s record

supports neither authenticity or accuracy, and thus the factual

case has not been made.

Although expressing reservations on the majority rationale

for denying the seal, I fully support the expedited

consideration. After hearing and adequate factual development,

this Board can take appropriate action. In light of the serious

nature of the allegations, especially in light of 35 Ill. Adm.

Code 721.124, I hope this matter can be brought quickly to a

conclusion.

\~

~\ ~

Bill S. Forcade

Member of the Board

I, Dorothy M. Gunri, Clerk of the Illinois Pollution Control

Board, hereby certify that the above. C~~curringStatement was

submitted on the

~

day of

____________________,

1987.

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~

/ --

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Dorothy 11. Gum, Clerk

Illinois Pollution Control Board

81—304