ILLINOIS POLLUTION CONTROL BOARD

September

16,

1971

FARMERS

OPPOSED TO EXTENSION

OF THE ILLINOIS TOLLWAY

et al,

v.

)

#

PCB 71-159

ILLINOIS STATE TOLL

HIGHWAY

AUTHORITY et al.

Norman J.

Barry of Chicago,

for Farmers

Gordon

C. Adler of Bloomington,

Ill.,

for Illinois State Toll Highway

Opinion of the Board

(by Mr.

Currie)

This citizen complaint seeks

an order preventing construction

of

a proposed extension of the East-West Tollway from Aurora to the

Rock River.

We ordered

a response and briefs on the question of

our jurisdiction.

After considering the briefs

and pleadings we

dismiss the complaint with leave to amend in certain respects.

We are required to hold

a hearing unless we find the complaint

“duplicitous” or “frivolous,” Environmental Protection Act,

Section

31(b).

Duplicitous

it is

not; we have had no other cases on this

matter.

As we said in an earlier opinion in this

case,

we will hold

a complaint “frivolous”

if we could not grant relief even were all

the allegations

proved,

since in such

a case

a hearing would only

waste time and money.

In

other words,

a motion to dismiss

as

frivolous

is the equivalent of

a demurrer.

Such

a motion

is before us,

and

to the allegations of

the

complaint we turn.

The first eight paragraphs

describe the parties,

the actions

allegedly taken by

the respondents,

and the area through which the

proposed extension is to run:

“some of the most productive

land

in the State and

in the Nation” and “relatively free

of air,

water

and noise pollution.”

Paragraph

9 alleges

that the respondents

have failed to study

the environmental consequences

of their proposed

action,

a claim that will be discussed in connection with related

paragraphs below.

Paragraphs

10

thru

13 allege that the extension will result

in air pollution because

of emissions from vehicles using the new

road.

Several gases emitted by vehicles

are

listed,

and

it is alleged

that each adversely affects agriculture.

Respondents reply,

among

other things, that

“a road itself

is incapable of causing pollution”

and that the solution to vehicular emissions

is to take action agains

2

—

4b~

---

vehicle manufacturers

or owners,not to halt highway construction.

We think the respondents’

arguments go too far;

as the complainants

argue,

the construction of

a road can certainly be

a contributing

cause of pollution from automobiles,

and if the problem is severe

enough and alternative solutions impracticable,

preventing highway

construction——Say

in an area already exceeding applicable air—quality

standards

and likely to continue doing so despite foreseeable

vehicular controls—-might very well be an appropriate sanction.

Nor are we persuaded that we are ousted of jurisdiction of

any of the issues in this

case by

the statutory provision,

Ill.

Rev.

Stat.,

ch.

121,

sec.

100-32, that ‘~“alldeterminations made by

the Authority

in the exercise of its discretionary power.

including.

.

.

the location.

.

of any

toll highway,

.

.

.

and

the plans and specifications thereof,

.

.

.

shall be conclusive

and shall not be subject to review by the courts or by any administrati

agency.”

The

law is clear that the Authority is exempt from

review only so long as it obeys the

law, People v.

Illinois State

Toll Highway Comm.,

3

11.1,

2d

218,

120 N.E.

2d

35,

44

(1954).

Nothing in any statute

gives

the Authority “discretion”

to violate

the Environmental Protection Act,

and serious constitutional

questions would arise

if the issue of such violation were removed

from judicial

and quasi-judicial scrutiny.

The Act makes clear

its applicability

to the

State,

and indeed the special responsibility

of the State to set an example of compliance in its

own activities

(Section

47(a)).

This Board has jurisdiction to entertain claims

against the Authority

for pollution.

A more difficult question is the adequacy of the allegation

that the extension will result in air pollution.

We have often

held that conclusory allegations do not suffice;

there must be

allegations specific enough to enable us to determine whether there

is any point in holding

a hearing.

The only specific facts alleged

here are that vehicles without complete exhaust controls will

use

the road;

that certain gases will be emitted;

and that those

gases

are harmful

to agriculture.

These facts are not denied,

but their admission is not enough to enable the complainants to

win their case.

If it were we should have to forbid the construction

of all new roads

in the State in the face

of an explicit legislative

decision that additional

roads are desirable.

See Ill.

Rev.

Stat.,

ch.

121,

Sec,

100—1.

Even

in the absence of such

a declaration we

could not hold that the emission of the stated contaminants, re-

gardless

of their quantity or of surrounding conditions, would

constitute air pollution,

for the statute and sound policy require

us

to balance the degree of pollution against the costs of its

prevention

(Environmental Protection Act,

Secs.

3(b),

31(c),

33(e)).

---

We do not intend by these remarks to lay down

a rule

requiring paralyzing detail

in every pleading.

But

our procedural

rule

304(c)

(2) requires

a degree of specificity not found in

the present claim in order

to avoid unnecessary hearings.

From

the complaint we have no reason to suspect that

the proof will

show this proposed extension to present any special problems of

air pollution beyond those of any other highway.

While we share

the widespread concern that means should be found to avoid undue

reliance

on the automobile, we see no chance that we would forbid

all highway construction

and no sufficient allegation that this

is

a special case.

The question whether this highway

is needed

would of course be relevant

in any close case as to whether the

new contamination

is unreasonable under the statute,

and it is

alleged that this road

is unnecessary.

But the question of necessity

is not one on which we would. be free

to ignore entirely the findings

of the Authority, which

is specifically

authorized to make that

decision within

the bounds of

law.

We do not think

an allegation

that

a highway

is unnecessary,

in the

face of such

a finding to

the contrary,

is sufficient

in itself to make resultant emissions

unreasonable.

We would not, by analogy, be willing

to interdict

a new foundry for air pollution simply on the ground that foundries

do emit contaminants

and that there are plenty of other foundries.

In other words, we will not substitute our judgement

for the

Authority’s

as to the desirability of the road from a traffic

point of view where there is no allegation of

a special pollution

problem.

The short of this

is that the allegations regarding air

pollution,

as

they

stand,

are insufficient even if proven to

support

a finding of

air

pollution,

and therefore they are

dismissed.

However, because the degree of specificity required

could

not

have been known in advance, we grant leave it desired to

file

an amended complaint containing allegations that would support

a finding of air pollution.

Much the same

can be said with regard to paragraph

14,

alleging that the extension will result in water pollution.

The

specific allegations are that salt used to prevent icing will

pollute the waters and

that the road will interfere with dtainage,

causing runoff to become stagnant and to lower water quality.

Again we

are not prepared to find water pollution on the basis

of anything inherent in highways.

The specifics here go further,

alleging that this highway has been designed without proper re-

gard to drainage

and that it will be improperly

operated by

employing salt for de—icing.

If significant interference with the

use of waters were shown as

a result of these alleged acts

or

omissions, under our precedents

the burden would shift

to the

respondents

to show that the harm could not practicably be avoided;

for significant harm that can practicably be avoided constitutes

pollution.

Moody v,

Flintkote Co., #70~36 (September

2,

1971).

2

—

463

---

Once again, however, we do not find the present allegations

sufficient.

That some salt,

“other chemicals,”

or “stagnant

water” may reach the streams does

not necessarily mean they will

do so in sufficient concentrations or quantities

to be detrimental.

Before going to the expense and trouble of

a hearing we must have

allegations—-and not mere conclusions——to that effect.

Moreover,

if at such

a hearing the use of salt were shown

to be the only

practicable means of avoiding winter accidents,

the case would fall.

And if avoidable water pollution were proved,

in all probability

the appropriate remedy would be

to forbid the use ~of salt, not to

prevent the building of the road.

We dismiss the water pollution

counts with leave to amend.

Paragraph 15 alleges that the proposed extension threatens

“grave damage to the environmental balance.

.

.

by changing

the use, character and appearance

of over 140 square miles

of land

now primarily devoted to agricultural, residential

and recreational

use”

and that many acres will be made unsuitable for such uses.

The problem of increasing consumption of rural

lands

for housing

developments, parking lots, highways,

and the like

is

a real one

to which governments must turn increasing attention.

The Institute

plans for creating machinery

at the state level to deal more

effectively with this problem.

But we

are not entrusted with direct

authority over questions

of land use policy, and we must there-

fore dismiss this claim——not for want of merit,

for we have no

statutory

scales in which to balance the competing values—-but for

want of jurisdiction.

Paragraph 16 alleges that the highway will result

in noise,

which according

to paragraph 21 would unreasonably interfere

with

the enjoyment of life inviolation of Section

24

of the Act.

But the Act makes clear that it

is not self-executing

in

this

regard.

Unlike the

air and water pollution sections,

the noise

provision expressly requires noise that violates Board regulations.

The Board

is required,

for better or worse,

to explore the noise

question fully as

a rule—making matter before attempting to

hammer

out guidelines

on

a case—by—case basis.

The Institute has

set

up

a task force that will soon recommend

a first set of noise

regulations;

any citizen

gx,-oup may do

so

as well,

Until

such regulations

are adopted we have no jurisdiction over noise complaints,

and the

count

is therefore dismissed.

Paragraph

17 alleges the lack of need

for the highway,

which

is

not an independent count but has been dealt with

above.

Paragraph

18 alleges that the foregoing conduct violates

Section

2 of the Act, but that section is

a mere statement of policy

and legislative findings explaining the need

for specific prohibitions

elsewhere

in the Act.

It creates no enforceable duty.

Cf.

EPA

v;

Clay Products,

Inc.,

#

71—41

(June

23,

1971).

2

—

464

---

Paragraphs 19,

20, and 21 specify sections of the statute

allegedly violated with respect to air and water pollution and

noise and have been dealt with

above.

Paragraph

22 presents

an interesting question of statutory

interpretation.

Section

47

of the Act requires state agencies

to submit to the Environmental Protection Agency by December

1

of each year two items.

The first

is

an assessment of

“the

extent to which its operations

are

in violation of this Act or of

regulations.

.

.

.,

the progress made in eliminating such

violations,

and

the steps to be taken in the future to assure com-

pliance”.

The second

is “complete plans, specifications and cost

estimates

for any proposed installation or facility that may cause

a violation.

.

.

.“

The complainants

argue that these provisions

require the Authority to prepare an assessment

of the environmental

impact of

a highway project and submit it to the Agency as

a

precondition to construction,

by analogy to the federal Environmental

Policy Act,

and that because no

such statement has been filed the

project must be terminated.

The policy of the federal act is an appealing one.

It attempts

to assure,

first,

that those who plan construction projects

fully consider

any possible adverse environmental effects,

and,

second,

that the relevant information

as to such effects be made

available

to the public and

to environmental agencies to facilitate

outside evaluation of the project.

Our statute clearly owes its

origin to the federal,

embodying the policy of internal environmental

assessment

to facilitate both internal correction and outside

review.

It goes beyond the federal by requiring assessment and

correction of existing pollution problems, and

it approaches

the

federal by requiring

the submission of plans

for proposed projects

for outside evaluation.

Yet it

is not identical to the federal,

as close inspection will show.

Section

47(b)

appears to look back-

ward,

not

forward;

to require annual review of existing operations

with

a view toward correcting them.

This conclusion

is buttressed

by

the fact

that such reports are

to be submitted only once

a year,

not whenever

a new project

is ready

for evaluation or construction.

It is also supported by

the existence of

a separate paragraph,

Section 47(c), specifically directed toward proposed facilities

and requiring the submission not of

a full environmental assessment

but only of “plans,

specifications,

and cost estimates.”

We hold

that neither section creates the duty

to file an environmental

assessment

as

a condition precedent to construction

of a new

facility.

This does

not mean such assessmei~itsshould not be made.

We take official notice that an extensive environmental

study of

the kind requested by

the complainants

has been undertaken

by the state in connection with the projected new airport on the

Illinois side

of the St.

Louis

area.

Such

a study cannot help

but enable the state

to avoid many unnecessary environmental problems

2

—

465

---

and is in full conformity to the spirit

of the statute,

and we

encourage other agencies

to follow this example.

We would also

suggest consideration of the desirability of filling the statutory

gap by requiring that such assessments be made, but we cannot find

such

a requirement

in the present statute.

We stress, however,

that other duties are specifically imposed by Section

47 and

urge all affected agencies to comply promptly and completely.

The state must set a good example if

it expects others to obey

the

law.

Complainants argue

that we should interdict

this construction

because,

as

is conceded, no plans

or specifications were submitted

to the Agency before December

1,

1970.

We agree with

the

complainants that

a highway is

a “facility” within Section 47(c);

the term was used

to indicate the breadth of the statutory re-

quirement affecting all construction that may cause

a violation.

Nor is the duty to file abrogated

if the constructing agency itself

believes there will be no violation,

for plans

are required

if the

facility

“may” cause

a violation,

The very purpose of submitting

plans

is to enable others to make

an intelligent decision as to

environmental

effects,

and the constructing body

is not the judge

of whether or not there will be air or water pollution.

But the

paragraph

is not drafted

so as to make such filing

a condition

precedent

to construction,

for plans they need be submitted

only

“by December

1 of each year.”

We disagree with

the respondents’

contention that

the statute requires submission only of specifications

in the technical sense of engineering details that are unavailable

until after the bonds

are sold;

at that point it

is likely to be

too

late for an environmental assessment

to have much impact unless

the project

is to be considerably delayed.

We think

the statute

requires each construction agency to examine

its drawing boards

as of each December

1 and to report on what is

in the planning stage

in as much detail as

is practicable,

so that the Environmental

Protection Agency will have

a chance before things have progressed

too

far to comment upon

the environmental aspects of the proposal.

But we do not find the requirement

a condition of construction,

since the dates

of submission

ar~einconsistent with that reading.

Once again we suggest the possible desirability of a statutory

amendment to make the section more ~ffective.

Finally,

the complainants

in paragraph

23 allege that the

highway would violate their “absolute statutory right to drainage

of their lands.”

This

is an issue that can be raised

in proceedings

relating to the condemnation

of land;

the state has power to take

property upon payment of compensation.

In any event

it

is

not

an

issue within our jurisdiction,

as our powers are concerned solely

with pollution,

not with flooding per

se.

2

—

466

---

In summary,

then, we hold that we have no jurisdiction

over the claims regarding noise,

land use,

and drainage,

except

as the last relates to water pollution;

that there is no statutory

requirement

that an environmental assessment be filed as

a condition precedent

to construction; that we will not

find air or water pollution simply on the basis that every highway

causes

the discharge of contaminants

or that the highway in question

may not be

in our view essential;

and that the complaint may be

amended to allege specific

facts showing that the highway in question

will have special problems of air or water pollution.

ORDER

Upon full consideration of the pleadings

and briefs of the

parties,

it is hereby ordered that the complaint be dismissed on

the ground that complainants would

not be entitled to relief even

if all facts alleged were proved.

This dismissal

is without

prejudice to the filing of an amended complaint within thirty days

with regard

to air and water pollution in accordance with

the Board’s

opinion.

I.

Regina E.

Ryan,

Clerk of the Pollution Control Board, certify

~atheBo~dadopted

the above Opinion this

J~day

of

—

467