ILLINOIS POLLUTION CONTROL BOARD

July

8, 1976

CITY OF DES PLAINES, RICHARD F.

WARD,

and ROSEMARY S. ARGUS,

)

Complainants,

v.

)

PCB 76—157

METROPOLITAN SANITARY DISTRICT

)

OF GREATER CHICAGO and THE

)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

Respondents.

DISSENTING OPINION

(by Mr.

Duinelle):

The majority of the Board has dismissed the Complaint as

being “frivolous in that it fails to state a cause of action for

which the Board can, at the present time,

fashion a remedy”.

I agree with the comments of the other Board Members that

the Complaint is of

a “shotgun” type.

It has

23 counts and many

are clearly not applicable or proper.

For example, Counts “g”

and “i” refer to Technical Policy

20-24 which is not a regulation of the Board.

Count

“k” alleges

that the Illinois Environmental Protection Agency has not adopted

certain

“standards” for sewage treatment plants.

Standards

and regulations are adopted by the Board, not the Agency.

Count

“1”

is concerned with an NPDES permit.

Since the NPDES permit

program has not yet been approved by both Illinois and the United

States government it is not yet in force and the Board has no

jurisdiction over Count “1” at this

time.

Other counts are vague and without the barest of factual

material to substantiate them.

Count “n” alleges

a violation of

the primary sulfur dioxide ambient air quality standard but no

information is given as to the fuel sulfur content,

amount of

fuel burned and the stack height of the heating plant at this

facility.

Count “u” alleges a fugitive particle violation but

23-61

---

—2—

no process description is given that would cause this

to occur.

Counts

“v”

and “w” allege violations of the reactive organic

materials rules but again no showing is made of a process using

organic solvents.

Having said all of this,

I am of the opinion that there do

remain some actionable counts.

The possibility of airborne

bacteria or viruses does exist

(see Count “a”) and the Complainant

should have had an opportunity to prove its case on at least this

matter.

I would have struck those other counts which were clearly

not applicable or vague and allowed the case to go forward.

If a hazard from airborne bacteria or viruses could be

proven,

then this Board could certainly order the covering of

the tanks emitting those aerosols. Covered sewage plants are in

use at the North Shore Sanitary District

(Clavey Road);

at Cedar

Rapids,

Iowa; and at Los Angeles

(Hyperion Plant).

Thus the

remedy is known and can be fashioned.

And it is preferable that

these very type of concerns be litigated and resolved in advance

of construction so as to minimize retrofit expense.

Thus there is a cause of action and a remedy could be

fashioned at this time.

I respectfully dissent.

Submitted by__________________________________

Jacob

D.

Dumelle

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board,~~rebycertify the above Dissenting Opinion was submitted on

the

tS~’’

day of July,

1976.

Illinois Pollution

1 Board