ILLINOIS POLLUTION CONTROL BOARD
June
8,
1978
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
)
Complainant,
v.
)
PCB 76—155
CHICAGO
& NORTH WESTERN
TRANSPORTATION COMPANY, a Delaware
)
corporation,
and PHILLIPS PETROLEUM
)
COMPANY, a Delaware corporation,
Respondents.
MS. KATHRYN S.
NESBURG and MR. JOHN BERNBOM, ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, APPEARED ON BEHALF OF COMPLAINANT;
MR.
THOMAS E. GREENLAND, CHICAGO
& NORTH WESTERN TRANSPORTATION
CORPORATION, APPEARED ON BEHALF OF RESPONDENT CHICAGO & NORTH
WESTERN TRANSPORTATION;
MR. ROBERT D. OWEN,
OWEN, ROBERTS, SUSLER
& TAYLOR and MR.
MEL
BLOOMFIELD,
PHILLIPS PETROLEUM COMPANY, APPEARED ON BEHALF OF
RESPONDENT PHILLIPS PETROLEUM COMPANY.
OPINION AND ORDER OF THE BOARD
(by Mr. Goodman):
On May 17,
1976, the Illinois Environmental Protection
Agency
(Agency)
filed this Complaint against the North Western
Transportation Company
(North Western)
and Phillips Petroleum
Company
(Phillips), alleging that Respondents caused or allowed
sufficient quantities of contaminants
to become present
in the
atmosphere for such duration as to be injurious to human, plant
or animal
life,
to health or to property,
or to unreasonably in-
terfere with the enjoyment of life and property,
thereby causing
air pollution in Illinois as defined by Section
3(b)
of the Act,
in violation of Section
9(a)
of the Act.
Hearings were held on
August 24 and 25,
1976;
no public comment has been received by
the Board in this matter.
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—
~65
—2—
The incident which
is the subject of this
Complaint
was
a
train wreck which occurred on May 16,
1976
in the Village of Glen
Ellyn
(Village)
in DuPage County,
Illinois,
The
facts
surrounding
the wreck are,
for the most part, not at issue.
Early
on a Sunday
morning May 16,
1976, two North Western freight trains were travel-
ing
eastbound
on
adjacent
tracks
in
the
Viliage~
Train
242
was
on
track
2
traveling
eastbound
at
a
speed of approximately
60
mph,
and
train
380 was on track
3 traveling
eastbound
at a speed
of approxi-
mately 40 mph
(R.20,
21).
Train 242 had overtaken train
380 when
it derailed,
spilling cars onto
the adjacent track in front of the
oncoming
train
380.
Train
380
struck the derailed cars,
itself
derailing
a
number
of
cars
including a
tank
car,
PSPX
32028,
owned
by Phillips and containing anhydrous
ammonia,
The front end of the
tank
car
was
breached,
and
anhydrous
ammonia
was
emitted
into
the
air
(R.64).
The
resulting
ammonia
vapors were
so dense that people
residing near the tracks had to be
evacuated from their homes,
some
becoming ill and requiring treatment for inhalation of ammonia fumes
(R.28—30).
These people were frightened and
inconvenienced,
and
some sustained damage to plants, pets
and property
(R.28-32).
The ammonia vapor emissions
commenced at about 4:30 a.m, and
continued
until
approximately
8:30 p.m~, at which
time
the leak
was
plugged
by
a group representing
the
DuPage
County
Health
Department,
the Village Fire
Department. and North
Western.
The
tank car owned by the
Phillips Petroleum Coapany and loaded with
anhydrous ammonia by Phillips
was the fifth car behind the
loco-
motive in train
380, which
was put together hr North Western.
The
tank car
is of a class
designated ll2A end uns not equipped with
a head shield.
The Agency filed its Complaint
against Nc~rthWestern and
Phillips charging violation of Section 9~a~uf the Environmental
Protection Act in that anhydrous ammonia was emitted
into
the
ambient
air in such a manner as to
cause air pollution.
North
Western and Phillips denied the charges, contending that the
Board lacked jurisdiction
to inquire into
~
~equ1ate
the field
of railway safety and that the Board is
f
cesipted by regulations
adopted
under
the
Railway
Safety
Act of
197k) and the Transport~
ation Safety Act of l974~
In
addition, Phillips contends that
the
action
is
an
attempt by the Agency to recphate interstate
commerce
and
is
contrary
to the commerce c~nucaof the Consti-
tution of the United States,
Before considering the
merits of the Comn3aint~ the
Board
must resolve the issue of its jurisdiction
in this matter.
Respondents rely
heavily
upon
their
contention
that
the
Board
—3—
cannot avoid becoming directly involved in the regulation of
railroad
safety
if
it attempts to find a violation of air pollu-
tion in this case.
The Board finds, however, that the two areas
of railroad safety and pollution abatement are distinguishable.
The Supreme Court endorsed this distinction in Huron Portland
Cement
Company
v.
Detroit,
362
U.S.
440
(1960),
where
local
air
pollution regulations were held valid against a harbored vessel
subject to Federal maritime regulations.
In that case,
a general
smoke abatement rule was violated when a vessel fully licensed
and regulated by Federal maritime provisions emitted smoke while
cleaning its stack.
The Court held that there was no overlap or
inconsistency inasmuch as the sole aim of the local abatement
rule was protection of the people~shealth as opposed to the regu-
lation of transportation.
More recent Supreme Court decisions
have indicated that for preemption
to be effective the conflict
must be “substantial”,
Kewana Oil Company v. Bicron Corporation,
416 U.S.
470
(1974), or the State rule must be
“absolutely
and
totally repugnant and contradictory”,
Goldstein v.
California,
412 U.S.
at 553,
(1973)
As
was
noted
previously,
the
facts
in
this
case
are,
for
the
most part,
not
at
issue.
There
was
a
trai~n
wreck
in
the
Village
of Glen Ellyn on the morning of May
16,
1976
involving
two
trains
put
together
and
operated
by
North
Western,
including
a
tank
car
of
anhydrous
ammonia
owned
by
Phillips.
The
ammonia
was
emitted
to
the
atmosphere
in
such
a
way
and
in
such
quantities
as
to
cause people residing near the railroad tracks to be evacuated
from their homes and for some to become ill, requiring treatment
for inhalation of the ammonia fumes.
Some citizens sustained
damage to plants, pets and property,
and were
frightened
and
in-
convenienced by the effects of the ammonia fumes.
The wreck
occurred at approximately 4:30 a.m.; the fumes were finally abated
at
approximately
8:30
p.m.
Most citizens were able
to return to
their
homes
by
10:30
p.m.
the
same evening.
Given the facts,
the
issue before the
Board
is
whether
the
emissions
of
the
anhydrous
ammonia from
a railroad car owned by Phillips due to the wreck of
a train put together and operated by North Western
constitutes
a
violation
of
Section
9(a)
of
the
Environmental
Protection
Act
(Act)
such that
the
Respondents
herein
may
be
found
to
have
been
in
violation
of
the
Act,
There has been much discussion on the record and in the
briefs
concerning railway safety,
federal preemption,
federal
regulations,
etc.
The fact remains, however,
that at 4:30
a.m.
on May 16,
1976 a tank car owned by Phillips and under the control
30
—
—4—
of
North
Western
was
emitting
a pollutant into the atmosphere of
the
State
of
Illinois
in
the
Village
of
Glen
Ellyn.
No
one can
reasonably suggest that there are any federal regulations con-
cerning that situation at that time.
There
is no evidence in
the record nor does the Board profess expertise
to enable it to
determine the cause of the train wreck.
There can be no doubt,
however, that a tank car spewing anhydrous ammonia into the
atmosphere
in sufficient quantities and of such characteristics
and duration as to be injurious to human, plant, or animal life,
to health or to property,
or to unreasonably interfere with the
enjoyment
of
life
and
property,
is
air
pollution
under
the
Act
and is under the jurisdiction of this Board.
Respondents contend that the wreck was an unfortunate acci-
dent which occurred without any intent on their part and that,
therefore,
they cannot be held in violation of the Act,
They
contend that the statutory language “cause or threaten or allow”
9(a)
requires more than a mere showing that air pollution
happened
or
existed
at
a
particular
place
and
time.
To
support
this
contention
Respondents
quote
a
common
dictionary definition
of
the
word
“cause”
-
“one who or that which acts, happens or
exists
in such a way that some specific thing happens as a result;
the
producer
of
an
effect.”
The
Board
accepts
this
definition
and
finds
that
the
Respondents
were
the
ones
who
happened
or
existed in such a way that resulted
in the breached tank car on
that
Sunday
morning
in
Glen
Ellyn.
The
Board
has found in the
past that the Act does not demand proof of guilty knowledge or
mens
rea
to
support
a
finding
of
violation.
Meadowlark Farms,
Incorporated v. Pollution Control Board,
17 Ill.App.3rd
851,
308
NE2nd
829
(1974),
Bath,
Incorporated v. Pollution Control Board,
10 Ill.App.3rd 507,
294 NE2nd
778
(1973).
In
determining
a
violation
by
Respondents
in
such
a
case
as
this,
the
Board
must,
according
to
Section
33(c)
of
the
Act,
consider
certain
factors
which
in
effect
weigh the value of the
pollution source against the effects of
such
pollution
on
the
people
of
the
State
of
Illinois
and their
property.
In
this
case,
no one seriously questions
the social and economic value of the
pollution source or the suitability of the source to the area
where it is located.
What concerns the Board here
is the character
and degree of injury to or interference with the protection of the
health,
general
welfare and physical property of the people.
As
stated
by
the attorney for Respondent North Western “there is no
argument that people were inconvenienced or that some people were
taken ill because of the inhalation of anhydrous ammonia fumes”
(R.15).
The record fully supports the allegation that people were
30
—
368
not only inconvenienced and harmed physically,
but that property
was
damaged or destroyed.
What the Board must now determine
is
whether this injury and interference could have reasonably been
reduced or eliminated by the Respondents.
Respondents allege that they did everything that they could
reasonably do given the conditions
under which the pollution
occurred.
Much testimony was presented to support this position
including the contention that corrective
efforts
by
North
Western
were thwarted by the Village Fire Department.
The Agency,
on the
other hand,
alleges that not enough was done by North Western and
that Phillips was ‘~conspicuousby its absence”.
Without becoming enmeshed in the step by step acts and/or
failures of North Western with respect to the sequence of events
subsequent to the derailment,
the Board finds
the simple fact to
be that after
16 hours the emissions were abated within minutes
utilizing equipment that had been available from the beginning.
This will undoubtedly be considered Monday morning quarterbacking
by
many.
However,
the Board finds that,
if
Respondents
are
to
ship material capable of causing pollution through areas suscept-
ible to the type of damage found herein,
it is their duty to
abate any such pollution
as
quickly as possible,
In
a
case
such
as
this,
it is obvious that such pollution must
be
anticipated
and preparations made before the actual occurrence.
North
Western did anticipate the problem generally when it prepared
what
it termed a system—wide emergency action
plan
and issued a
handbook to local Fire Departments along its line recommending
procedures for handling fires involving hazardous materials
(Exhibit 12).
Unfortunately,
the results here indicate that,
although the problem has been recognized by Respondents,
it has
not been dealt with effectively.
The fact that the handbook
resided in the Fire Department~slibrary while both the
Fire
Department and Respondent~sexperts discussed the situation at
the wreck site indicates that mere distribution of the handbook
accomplished nothing~
The apparent lack of faith in the opinion
of Respondent~sexperts by Fire Department personnel indicates
further failure of Respondent~s “emergency action plan” under fire.
It appears
to the Board that, although Respondent North Western
has recognized the problem and has made some attempt to address
it,
it achieved very little success, at least in this case.
Considering the foregoing the Board finds Respondent North
Western in violation of Section 9(a)
of the Act,
Since Respond-
ent Phillips addressed only the issue of preemption, the Board
30
—6—
can find no reason why it should not also be responsible
for the
emissions from its own tank car and finds that Phillips has
vio-
lated
Section
9(a)
of
the
Act.
A
cease
and
desist
Order
in
this
matter would
serve
no
useful
purpose
as
the emissions have
long
since been totally eliminated.
The Board
finds
that,
considering
the great loss experienced by the Respondents
in this matter and
their recognition of and attempts to resolve
the problem,
a fine
would not further the enforcement of the Act in this case.
The
Board
finds
that,
if
the
People
of
the
State
of
Illinois
are
to
be
exposed
to
the
danger
of
pollution,
it must be the burden of
those who own and/or operate the potential source to anticipate
and make preparations to abate this pollution should it occur.
The owners and/or operators of these sources cannot expect the
People of the State of Illinois to defend themselves against such
pollution without the help of those inherently best equipped and
most
knowledgeable
with
respect
to their protection.
This Opinion constitutes
the findings
of fact and conclusions
of law of the Board in this matter.
ORDER
It
is the Order of the Pollution Control Board that, on
May 16,
1976,
the Chicago North Western Transportation Company
and the Phillips Petroleum Company violated Section 9(a)
of the
Environmental Protection Act.
I,
Christan
L.
Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order
were adopted on the~~
day of~~
,
1~978 by
a
Vote
of
~
.
C
ontrol
Board
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370