ILLINOIS POLLUTION CONTROL BOARD
June
27, 1972
YOUTH FOR ENVIRONMENTAL SALVATION
v.
)
#71—254
CHICAGO, MILWAUKEE,
ST. PAUL
&
PACIFIC RAILROAD
MR. JOSEPH V. KARAGANIS,
ON BEHALF OF YOUTH FOR ENVIRONMENTAL
SALVATION
MR. DEAN M.
TRAFELET, ON BEHALF OF CHICAGO, MILWAUKEE,
ST.
PAUL
&
PACIFIC RAILROAD
MR. HAROLD
H.
WINER,
ON BEHALF OF VILLAGE OF DEERFIELD
OPINION OF THE BOARD
(BY MR. CURRIE):
This is
a citizen complaint filed by Youth for Environmental
Salvation
(YES), charging
the Milwaukee Road with violations
of the
regulations
(APCB Rules
~nd Regulations Governing the Control of
2~irPollution, Ch.
6, Ru~1es6-6.2
and 6-6.5)
respectingvisible emis-
sions from diesel locomotives.
After prehearing conferences
and
a full
day of hearing,
the parties entered into
a stipulation resolving all
significant factual disputes.
The railroad concedes
that seven dif-
ferent locomotives on five distinct days emitted contaminants
of more
than the
30
opacity permitted by the regulation,
and no contention is
made that
the
emissions
were within
the sole exception, which is for
“individual
smoke puffs during acceleration”.
The railroad’s defense
is that it did everything it could be expected
to do in an effort to
reduce emissions.
We are thus presented with
two questions:
the
extent to which such
a defense
is recognized by
the statute,
and whether,
if there is such
a defense,
the railroad has established it in this
case.
First,
it should be made clear that liability for pollution or
for
violation of the regulations does not depend upon affirmative
proof
of
negligence.
The statute simply makes
it illegal to “cause
or allow” pollution or to exceed standards set by the regulations.
(Environmental Protection Act,~ 9(a),
12(a).)
As we held
in an
ear3Jer decision respecting
an accidental oil spill,
the
statute
imposes an affirmative duty to keep offending quantities of contaminants
out o~
the environment
(Environmental Protection v.
Valley Line,
Inc.,
#
7J-28~g,~January
6,
1971).
The present regulation,
under the same
sections of the statute, has
the
same effect.
The statute recognizes
that
to require proof
of negligence would greatly impede the enforce-
ment process and fail
to achieve the goals of the pollution control
program.
People who control such materials
as
cyanide,
for example,
simply must keep them where they will do no harm.
4
—
697
Recognizing that responsibility under the Environmental
Protection Act is not generally based upon negligence, however,
does not
mean there can never be
a defense based upon the unavoidability of
an
emission that exceeds prescribed limits.
The statute provides
that
in
determining what order to enter for a proved violation,
the Board must
consider
the technological and economic practicability of compliance
(~33 Cc)
(4))
and places the
burden
on
the
respondent
to
show,
in
light of technology and economics
as contrasted with the harm done,
that
compliance would impose an arbitrary or unreasonable hardship (~3l (c)0.
In framing regulations we are required to consider what can practicably
by
achieved
(~27),
and
we
have
done
so.
See
generally
our
opinions
in
##R70-8,
R71-l4
and
R7l—23
(Effluent
Standards,
Water
Quality
Standards and Emission Standards)
.
In
individual
cases,
as indicated
above,
we are directed to entertain legitimate claims
of impracticability,
in recognition that general
rules that are generally attainable may
create
undue
hardships
in
particular
circumstances.
We
are
empowered
to grant variances in such cases upon appropriate conditions.
Whilc many
of the variances we
have
granted
have
involved
simply
an
extension
of
time
in
which
to
achieve
compliance,
e.g.,
Illinois Power Co.
v.
EPA,
#71-193
(November 11,
1971)
,
cases
are
conceivable
in
which
unusual
conditions require an essentially permanentrelaxation of
a standard.
The
argument
in
the
present
case
differs
from
both
the
above
cases:
It
is
that
a
standard
that
can
now
be
met
most
of
the
time
must
necessarily
be
exceeded
on
occasion
due
to
uncontrollable
factors.
Our
regulations,
in
several
respects,
recognize
the
legitimacy,
within
limits,
of
this
kind
of
hardship
claim.
Both
our
emission
standards for air contaminants
from
stationary sources
(PCB kegs., Ch.
2,
Rules
203,
204)
and our effluent standards for water contaminants
CPCB kegs.,
Ch.
3, Rules
201,
401)
allow averaging
of discharges
in
certain cases on the basis of normal fluctuations
in the performance of
control equipment even when properly operated
an maintained.
Related
also are our provisions,
in the above regulations, regarding breakdowns of
control equipment
(Ch.
2, Rule 105;
Ch.
3, Rule 601).
The water
regulation requires anticipatory precautions
to be taken to minimize
the adverse effects of breakdowns;
the air regulation goes so far as to
permit continued operation despite the standards
if
a prior
showing of
need has been made.
In the case of visible emissions from stationary
sources,
we have allowed a limited excursion beyond the standard
for eight
minutes in an hour, not more than three times daily,
in reliance on test-
imony as to
a variety of expectable and unavoidable circumstances
(including startups and soot blowing)
that make occasional
excesses
necessary
(PCB Regs.,
Ch.
2,
Rule
202;
See
opinion
in
#R7l—23,
Emission
Standards, April
13,
1972).
The policy behind such an exemption is
that, once it has been determined that the harm done by such emissions
is not so great as to justify shutting down the activity,
there
is
nothing to be gained by penalizing people who have done all they can
to minimize pollution.
We
see no reason why
such proof could not be
made in mitigation of
a violation of
a regulation absolute on its
face,
under the statutory provisions respecting arbitrary or unreason-
abe
hardship
and
technical
or
economic
feasibility.
4
—
698
We stress that the statute itself makes quite plain that the burden
of proving ~an inability to comply is upon the respondent;
if no such
proof
is made, responsibility
is established on the basis of emissions
exceeding the standard.
Nor does
our decision mean that the desirability
of
a regulation may be relitigated
in every case;
the strict statutory
language requiring
a showing of arbitrary or unreasonable hardship,
coupled with explicity legislative history, negates
any such conclusion.
See the discussion in Environmental Protection Agency v.
Lindgren
Foundry Co.,
#70-1,
(September
25,
1971).
Moreover,
the question of
impracticability of compliance depends upon
a balancing of
the harm
a vio-
lation causes against the costs of compliance.
Thus, measures whose
cost may be excessive
to prevent minor visual annoyances may be entirely
appropriate
to avoid an extensive fish kill.
If the risk
is great
onough and
the threatened values sufficiently large,
such measures
might conceivably include an interdiction of the offending activity,
at least in that location,
depending upon the value of the activity
and the availability of alternatives.
Further,
the degree of relief
afforded on
the basis
of such proof may depend upon the circumstances.
It may be appropriate in some cases to refrain from imposing money penal-
ties for purposes of deterrence or punishment,
while requiring the
respondent to pay for aquatic life damaged
(Environmental Protection
Act, Section 42), or to clean up an accidental oil spill,
on the ground
that doing so is
a legitimate cost of doing business.
Having examined the general principles governing defenses
such as
that made in this
case, we turn to the undisputed facts.
The railroad
tells
us
that
one
smoky
incident
occurred
because
a
locomotive,
apparently
in good condition when it began its journey, threw a rod enroute;
that
a second was attributable
to cottonwood
seeds clogging an air
filter;
and that the rest probably arose from wheel slippage that altered engine
load conditions
due to
a track condition beyond the engineer’s control
(R.
97—98,
136-141,
Ex.
10).
We do not find this evide~icesufficient
to prove that the emissions could not practicably have been prevented.
The railroad conceded
that in the case of the thrown rod
it had failed
to
conduct
a
regular
14—day
inspection
that
might
have
revealed
a
water
leak making
such an accident
likely.
There is no evidence that
some type of simple screening could not be devised at low cost to keep
such gross
items as cottonwood
seeds from fouling the filters.
There
is no proof
that the track conditions resulting in wheel slippage
could not have practicably been corrected.
The burden is on the
railroad
to prove
these things;
it has failed to do
so.
We are asked by
the complainant to impose a penalty of $500 for
each
day of offense.
The railroad objects that
this recommendation violates
a procedural agreement as to timely notice of an earlier $200-per—day
request was to be changed.
We have no evidence as to the duration,
volume or effect of the emissions in this case,
and on the basis
of
our own experience with the type of emission here involved, we believe
a penalty of $50
per incident
is sufficient,
for a total
of $350.
A
smoky diesel locomotive is unpleasant but not devastating,
and
the
4
—
699
railroad’s defense, while falling
short of complete exculpation, does
show no gross dereliction was responsible.
ORDER
1.
The Chicago, Milwaukee,
St.
Paul
& Pacific Railroad
(Milwaukee Road)
shall cease and desist from emissions
in excess of those permitted by Chapter
6 of the Rules
and Regulations Governing the Control of Air Pollution.
2.
The Milwaukee Road shall, within 35 days after receipt
of this order,
pay to the State of Illinois the sum of
$350.00
as
a penalty for
the violations found in the
Board’s
opinion.
Payment shall be made by check to the
Environmental Protection Agency, Fiscal Services Division,
2200 Churchill Drive, Springfield,
Illinois
62706.
I, Christan Moffett, Clerk of the Pollution Control Board, certify
that the Board adopted the above Opinion this
~7~’
day of
June,
1972, by
a vote of
~
~
4
—
700