ILLINOIS POLLUTION CONTROL BOARD
    February 14, 1975
    )
    CITIZENS FOR A BETTER ENVIRONMENT,
    )
    Complainant,
    )
    )
    )
    v.
    )
    PCB 74-201
    )
    )
    STEPAN CHEMICAL,
    )
    Respondent,
    )
    )
    STEPAN CHEMICAL,
    )
    Petitioner,
    )
    )
    )
    v,
    )
    PCB 74-270
    )
    )
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    )
    )
    )
    STEPAN CHEMICAL,
    )
    Petitioner,
    )
    )
    )
    v.
    )
    PCB 74-317
    )
    )
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Respondent.
    )
    CONCURRING OPINION
    (by Mr. Dumelle):
    I concur in the result of this Opinion and the necessity
    for and the amount of the penalty.
    I
    do not agree with the Opinion wherein it finds
    that
    the ditch constructed by Stepan is not a “water of the State”
    (page
    14)
    .
    Section
    3 of the Environmental Protection Act
    15—467
    -2-
    clearly delineates all “accumulations of water”
    in this
    category.
    The Board’s Regulations exempt “sewers and treatment
    works” and thus
    is narrower than the statutory definition.
    Is
    the
    ditch
    then
    a
    “sewer”
    or
    a
    “treatment
    works”?
    There
    is
    no
    showing
    that
    treatment
    takes
    place
    in
    the
    ditch.
    ceuld then
    consider
    it
    as
    an
    outfall
    sewer,
    albeit
    an
    open
    sewer.
    However,
    since
    access
    to
    the
    ditch
    is
    possible
    by
    the
    public
    (and
    presumably
    by
    wildlife)
    I
    would
    require
    it
    to
    meet
    water
    quality
    standards
    for
    protection
    of
    the
    public
    and
    wildlife.
    Thus,
    to me, the ultimate distinguishing point of
    difference
    as
    to whether
    a ditch must meet water quality
    standards
    (is
    a “water of the State”)
    or
    is
    a “sewer”
    i~s access.
    If access
    is restricted,
    as
    in Allied Chemical
    V.
    EPA, (PCB 73-382)
    then
    the outfall ditch merely becomes
    a means of conveying an effluent to
    a receiving stream.
    Presumably, effluent standards and mixing
    zone regulations
    will prevent harm to that receiving stream at the point of
    juncture.
    The Chicago area has miles
    of artificial waterways
    including the Sanitary and Ship Canal, the North Shore
    Channel
    and the Cal-Sag Channel.
    These
    are truly artificial
    “ditches” but we certainly regulate and protect them from
    pollution.
    They are accessible to the public and must be
    protected in the interest of public health.
    Thus,
    I do not agree with the Opinion’s assertion that
    a
    publicly accessible ditch
    in which effluent flows
    is not
    protected by the Rules
    and Regulations of the Board.
    /~‘
    ~
    I, Christan L. Moffe
    Clerk of the Illinois Pollution
    Control Board, hereby certify the above Concurring Opinion was
    submitted on the ~~day
    of February,
    1975.
    C~ristan~L~
    ~o
    e
    ler~
    Illinois Pollution
    ontrol
    Board
    15
    —468

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