ILLINOIS POLLUTION CONTROL BOARD
    April 14, 1977
    JOSEPH T. ENDERS,
    Complainant,
    v.
    )
    PCB 75—283
    VILLAGE OF GLENDALE HEIGHTS,
    Respondent.
    Mr. Joseph
    T. Enders, Complainant, appeared pro Se;
    Messrs.
    Theodore E.
    Cornell III and Kenneth J. Gumbiner, Attorneys,
    appeared for the Respondent.
    OPINION AND ORDER OF THE BOARD
    (by Mr.
    Zeitlin):
    This matter was initiated by the filing of a formal Complaint
    by Complainant Joseph T.
    Enders
    (Mr. Enders)
    on July 24,
    1975.
    That
    Complaint,
    along with supporting letters from private citizens,
    alleged that Respondent Village of Glendale Heights
    (Glendale Heights)
    had violated Section 9(a) of the Environmental Protection Act
    (Act)
    and this Board’s Order in a previous case,
    in the operation of
    a
    sewage treatment plant
    (STP),
    throughout
    a period beginning
    in 1972
    and ending with the filing of the Complaint.
    Ill.
    Rev.
    Stat.,
    Ch.
    111—1/2, §l009(a)(1976).
    Enders
    v. Glendale Heights, PCE 72-252,
    5 PCB 683
    (1972).
    Section 9(a)
    of the Act contains the statutory
    prohibition of air pollution; the previous case,
    PCB 72-252,
    entailed
    a finding of violation of Section
    9(a) by the Village of Glendale
    Heights, and specific Orders with regard to the abatement of that
    odor viohition.
    See
    also,
    EPA v. Glendale Jieiqht~,
    PCR
    70-8,
    1 PCB
    217
    (1971)
    On August
    7,
    1975,
    the Board entered an Interim Order which
    consolidated this matter with a then—pending Variance case, G1enda~
    Heights v.
    EPA, PCB 75—180
    (November
    6, 1975).
    That Interim Order
    also struck from the Complaint the alleged violation of our earlier
    Order in PCB 72-252,
    supra, noting that,
    “The proper forum to compel
    compliance with prior Board Orders is.
    .
    .the Circuit Court..
    .“
    Two additional Interim Orders were entered on August 28,
    1975.
    The first of those Orders severed the instant case from PCB75-180,
    supra,
    the Variance case;
    the second denied a Motion to Strike and
    Dismiss filed by Respondent.
    25
    263

    —2--
    Again on September 18,
    1975, two Interim Orders were entered:
    The first denied Complainant Enders’ Motion for Reconsideration of
    our August
    28, 1975 Interim Order separating the Enforcement and
    Variance cases;
    the second decided a Motion for Interlocutory Appeal
    brought by Respondent from certain rulings of the Bearing Officer.
    ~ further Interim Order, entered November 26, 1975, denied a
    motion appealing additional orders of the Hearing Officer, and
    upheld his decisions.
    Additional
    Interim Orders entered January
    8
    and February 11, 1976, granted Leave to File an Interlocutory Appeal,
    arid again upheld certain actions of the Hearing Officer, respectively.
    Public hearings were held in this case on the following dates:
    December
    6,
    1975; March
    5, April
    3, April 10, and April
    27,
    1976.
    The record
    in this matter is extensive, containing
    (in addition to
    the 1,253 pages of transcript of those hearings)
    a considerable
    quantity of documentary exhibits.
    A number of citizens appeared
    for both Complainant and Respondent,
    and both sides attempted
    to
    introduce technical and scientific evidence through expert and lay
    witnesses.
    Following the close of the hearings,
    several motions were made
    by
    both parties, which were explicitly
    left by the Hearing Officer
    for Board decision.
    The Board has determined that action on the
    following motions
    is necessary or helpful, and takes the action
    indicated:
    Complainant’s Request to Enter Document,
    filed
    May
    4,
    1976,
    is denied.
    Complainant’s Motion to Correct Record,
    filed
    July
    7,
    1976,
    is granted.
    Complainant’s Motion to Reconsider Hearing
    Officer’s Ruling, filed July
    7, 1976,
    is denied.
    Complainant’s Motion for Reconsideration,
    filed
    Au;ust
    18,
    1976,
    is denied.
    Complainant’s Motion to Exclude Respondent’s
    Brief
    from the Record, filed August 18,
    1976,
    is denied.
    Complainant’s Motion to Exclude the Hearing
    Officer’s letter
    (concerning witness credibility),
    filed August 19,
    1976,
    is denied.
    Any remaining motions are determined
    to be moot
    (e.g., Motion for
    Ruling of August 20, 1976), or immaterial,
    in light of our findings
    herein on the merits of the case.
    25
    264

    —3—
    The essence of this case consists of the following
    two allegations
    by Mr.
    Enders:
    1.
    Operations at the Glendale Heights STP have
    caused noxious odors over the last several years,
    resulting
    in
    serious, widespread interference with
    the
    enjoyment
    of life and property of those individuals
    residing
    in the area surrounding the STP.
    2.
    Operation of the Glendale Heights STP has
    caused, and continues to cause,
    the emission of
    aerosols containing pathogenic viruses and bacteria,
    resulting
    in
    a health hazard for the surrounding
    residents,
    as well as to children attending a school
    located immediately adjacent to the plant.
    The relief sought by Mr. Enders is
    a requirement that Glendale
    Heights cover the STP’s treatment tanks and scrub the off—gases.
    Complainant’s burden with regard to an odor allegation has
    been previously stated by the Board:
    1.
    Was there in fact an odor?
    2.
    Was that odor caused by Respondent’s STP?
    3.
    Did that odor result in interference with the lives,
    environment, enjoyment of property, etc.,
    of the
    citizens affected?
    4.
    Was
    such interference unreasonable, such unreasonable-
    ness being measured, in part, by the criteria in §33(c)
    of the Act.
    People v. North Shore Sanitary District,
    PCB 74—223,
    74—229
    (Consol.),
    19 PCB 192
    (1975).
    See,
    City of Nonmouth v. PCB,
    57 Ill.2d
    482, 313 N.E.2d 161,
    i~3 (1974); Mystik Tape v.
    PCB,
    60 Ill.2d 330
    (1975);
    Processing
    arid
    Books, Inc. v.PCB,
    64 Il1.2d
    68 351 N.E.2d,
    86~ (1976).
    We determine that the burden with regard
    to Complainant’s
    allegation of dangerous bacterial and viral aerosol emissions is
    essentially the
    same as that for odor,
    supra.
    Complainant must
    show the existence and nature of the aerosol emissions, and that
    such emissions do in
    fact pose a serious potential threat to the
    health of those
    affected.
    However, absent an actual showing of
    adverse health effects,
    the potential for or probability of such
    effects must be demonstrated by acceptable scientific evidence.
    See,
    e.g., Draper and Kramer,
    Inc.
    v.
    PCB,
    40 I1l.App.3d
    918,
    353 M.E.2d 106, 109
    (1976)
    Turning
    to the merits of the case,
    we shall discuss first the
    alleged aerosol emissions.
    25
    265

    —4—
    Complainant’s case on the existence of possibly
    or potentially
    harmful aerosol emissions is based largely on the testimony of
    Dr. Hutton
    D.
    Slade,
    a professor of microbiology at Northwestern
    University.
    The principal documentary basis for the allegation
    is a report prepared by Dr. Slade for the City of Des Plaines
    concerning possible health aspects of sewage treatment plant
    operations,
    (Complainant’s EX.
    1,
    R.
    147).
    It is Complainant’s
    and Dr. Slade’s contention that that report
    --
    constituting a
    summary of scientific literature on the spread of bacterial and
    viral infections from sewage treatment plants
    --
    would apply to
    operations at the Glendale Heights STP,
    (R. 151).
    It
    is claimed
    that aerosols are generated in sizes that are capable of entering
    the smallest portions of the lungs, and that these minute droplets
    are likely to contain the same pathogenic microorganisms present
    in STP influents,
    (e.g.,
    R.
    199—202, 236—238,
    247,
    301—303)
    Dr. Slade’s testimony is simply insufficient, by itself, to
    support any finding that the operation of the Glendale Heights STP
    does,
    in fact, pose any real, potential,
    or possible health hazard.
    The witness was unclear as to whether the alleged hazard would be
    “possible” or
    “potential,”
    (e.g.,
    R.
    156-157).
    No independent
    research was done for the report,
    (id.).
    Although the witness
    stated at one point that his report stands for the fact that there
    are adverse effects from sewage treatment plants generally,
    (R.
    156),
    T~~jj~
    statement was repudiated at a subsequent hearing,
    (IL
    293).
    In
    addition, Dr.
    Slade’s testimony was directly contradicted
    by
    an
    equally credible witness for the Respondent,
    (e.g,
    R.
    994-1000).
    Complainant’s documentary offerings are of no greater use.
    It
    is clear from testimony that there are widely differing views in the
    scientific community on the subject of possible aerosol hazards,
    (e.g.,
    R.
    207, 183,
    280,
    333,
    1000).
    Even if the Board were to
    accept completely all of the documentary evidence offered by
    Respondent, sufficient questions would remain to preclude any
    finding of violation under §9(a)
    of the Act.
    However, many of the
    documentary exhibits offered by Complainant could not be admitted
    --
    on any of several grounds.
    Even if the test for
    a finding of violation under
    §9(a) with
    regard to aerosol emissions were relaxed,
    the record would be
    insufficient to support a finding of violation. The inconclusiveness
    of the scientific testimony is accompanied by a complete failure
    of the Complainant to demonstrate any actual, physical harm caused
    by the STP.
    In
    fact, the testimony received
    in this regard was to
    the contrary,
    (e.g.,
    R.
    1124).
    Although Mr. Enders attempted to
    show that either the odor or the aerosol problems may have caused
    illness in one case,
    (e.g.,
    IL
    66,
    226), that testimony concerned
    an individual already terminally ill with cancer.
    No conclusive or substantive finding of violation with regard
    to the alleged aerosol hazard can be found.
    25
    266

    —5-.
    Turning next to the large body of testimony with regard to the
    alleged odor violations, we must reach the same conclusion.
    The
    record contains extensive testimony on the presence or lack of odors.
    It also contains extensive testimony as to the presence or absence
    of improper operating methods or other
    conditions likely to cause
    odors.
    That evidence
    is inconclusive, although it does raise the
    possibility that an odor may have existed during the period covered
    by the Complaint.
    The testimony brought to show the existence of an odor,
    as well
    as the alleged unreasonable interference caused by that odor,
    is
    directly contradicted by equivalent contrary evidence brought by
    Respondent.
    While many of the Complainant’s witnesses alleged that
    a foul and noxious odor forced them to remain indoors or install
    air—conditioning
    (e.g.,
    R.
    82, 111,
    118,
    129,
    370,
    432,
    473),
    Respondent’s witnesses testified that they have detected no odor,
    or at least no objectionable odor, during the period covered by the
    Complaint,
    (e.g.,
    R.
    564,
    643,
    666,
    688,
    1134,
    1158).
    In addition,
    at least two of Complainant’s witnesses equivocated on either the
    nature or the effect of the alleged odor,
    (e.g.,
    R.
    46, 73).
    Standing
    alone, the testimony is inconclusive.
    There are two additional factors which support our decision
    that the testimony is not sufficient to support a §9(a)
    violation.
    First,
    the Hearing Officer’s opinion as to credibility, filed on
    May
    3,
    1976,
    states:
    In my opinion, Complainant Joseph
    T. Enders’
    testimony concerning the extent
    to which the
    odors from the plant interfered with his enjoy-
    ment of his property was not credible.
    I also do not accept the testimony of his other
    witnesses concerning the degree to which the
    odors interfered with or prevented the use of
    their property.
    Although Complainant sought
    (Motion of August
    19,
    1976)
    to
    have the Hearing Officer’s letter stricken as improper under the
    Procedural Rules, we have denied that Motion,
    supra.
    Although the
    final paragraph of the Hearing Officer’s letter does approach the
    Board’s function rather than the Hearing Officer’s,
    there
    is no
    deficiency here to require that the mandatory findings as to credi-
    bility be stricken.
    Careful reading of the record indicates that
    the Hearing Officer made every possible attempt to allow Complainant
    and his witnesses to show the existence, extent, and effects of
    the alleged odors.
    The Hearing Officer allowed such latitude, and
    went to such lengths
    to protect Complainant’s case, that we can
    find no trace of any hostility towards the Complainant or his case.
    We accept the Hearing Officer’s statement as to credibility.
    25
    267

    —6—
    Secondly, the testimony presented by Complainant seems questionable
    in light of cross-examination of Complainant himself at the fourth
    hearing.
    It seems quite possible from Mr. Enders’ responses to
    cross-examination that many of the surrounding residents’
    objections
    to the Glendale Heights STP may have been initiated by the Complainant
    himself.
    Complainant’s case with regard to the existence of operational
    and maintenance practices at the STP which could lead to the existence
    of noxious odors, may be disposed of summarily.
    Complainant failed
    to show the existence or any regular or continuing practices at the
    plant,
    since 1972, which would lead to the existence of the regularly-
    occurring odors complained of by him and his witnesses,
    (e.g.,
    R.
    589—624).
    In summary, the evidence shows clearly that an odor did exist
    prior to 1972
    --
    a period not covered by the Complaint in this case.
    That odor was the subject of a prior case, and need not be discussed
    again here.
    See, PCB 72-252,
    PCB 70—8, supra.
    In addition, the
    evidence shows that there may occasionally be some mild odor in the
    area of the STP.
    Testimony presented by both sides,
    including some~
    admissions by Respondent,
    (e.g.,
    R.
    394), indicates that there may
    have been conditions which may have led to odors.
    Expert testimony by a representative of the Environmental
    Protection Agency,
    (R.
    730,
    811), indicated that a well-run STP is
    unlikely to cause noxious odors
    (although all STPs may have some
    mild odor);
    Glendale Heights being one of the five best-run of 200
    STP’s
    in the state, no serious odor problem is to be expected.
    Although the record indicates that Glendale Heights has continued
    to improve procedures for monitoring plant operations,
    (e.g.
    the
    installation of a new alarm and surveillance system,
    (R.
    617,
    597),
    the responsibility rests with Glendale Heights to insure the proper
    and efficient operation of the sewage treatment plant.
    Complainant having failed to meet his burden of proof, as set
    out above, the Complaint must be dismissed.
    ORDER
    IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that the
    Complaint in the instant matter be dismissed.
    Mr. Jacob
    D. Dumelle concurs.
    25
    268

    —7—
    I, Christan L. Noffett, Clerk of the Illinois Pollution
    Control Board, hereby certify the above Opinion and Order were
    adopted on the /4~~’day of ~
    ,
    1977, by a vote of ,à~:tD
    Illinois Pollution
    25
    269

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