ILLINOIS POLLUTION CONTROL BOARD
May
17, 1972
ENVIRONMENTAL PROTECTION AGENCY
v.
)
PCB 71—291
JAMES McHUGH CONSTRUCTION COMPANY
Dissenting Opinion
(by Mr. Duinelle)
I agree with the first five—plus pages of
the majority opinion
which deal
with the
facts and the home
rule and City—McHugh relations
issues.
And
I would of course dissent from the Board Opinion
(p.
8)
which endorses the apportionment of transcript
costs
to the parties
as going heyondthe powers of this Board given to it by
the Environ-
mental Protection Act
(see Dissenting Opinion IN THE MATTER OF
TRANSCRIPTS
(Procedural
ikule
328), R72—l).
The issue
in this case is that of proper pleadings and adequate
notice to the respondents.
The fact of
a gross discharge of limestone
to the North Branch of the Chicago River is admitted as having gone
on since 1967
(R.
65,
78)
.
A simple computation using
the median
flow of 90 gpm
(R.
94,
135)
and
the 5200 mg/i solids found in the dis-
charge
(R.
35)
and assuming an 8—hour
Work
day shows 1,870
lbs. of
limestone dust or sludge being discharged per
day.
Were someone to stand on the nearby Lawrence Avenue Bridge and
each day empty 18—plus sacks containing 100
lbs. each of limestone
screenings into
the River the result on
the stream
would be no
different.
Yet that is what occurred here.
A joint venture of three
large construction companies used
to handling multi—million dollar
tunnel work evidently saw nothing wrong
in discharging almost a ton
per day
of solids to the very river their project was to improve.
The amended complaint was received by
the Board on November
10,
1971
well
in
advance of the hearing held
on
March
29,
1972.
Count
3 of
the
amended complaint is
a key to the question of proper pleadings.
It
states that the discharge “did cause or tend to cause water pollution
in Illinois
as defined in Section 3(n)” of the Act,
“in violation of
Section
12(a)
of
the
Act.”
Let
us
then
look
at
Section
12 (a)
of
the
Act.
In
addition
to
the
prohibition
against
water
pollution
it
has
a
significant
second
part
which
shortened
reads
as
follows;
4
—
519
No person shali~
Cause or threaten or allow
the
discharge
of any contaminants into
the environment
in any State
so as... to violate regulations or stan-
dards adopted by
the Pollution Control Board under
this Act;
The
pertinent regulations
are, of courser SWB-15, which was preserved
in full force
by
the
Act,
For the stream sector in question Rule
1.03
governs.
The pertinent section of
1.03 reads
in full as follows:
1.
These General Criteria,
in addition to specific
criteria,
shall
apply
to
all
waters
at
all
places and at all times.
a. Free from substances attributable to municipal,
industrial
or
other discharges that will settle
to fOrm putrescent or otherwise objectionable
sludge deposits;
or substances
(coal fines,
quarry fines,
fly ash, limesludge,
etc.)
which
will form bottom deposits that may be detrimental
to
bottom
biota,
The
lime
dust
or
chips
discharged
by
McHugh
is
identical
to
“quarry
fines’
which
are
specifically
prohibited
above.
It
seems
to
me
that
McHugh
ci:
a~,
received
ample
notice
in
the
amended
complaint
in
light
of
a
specific
listing
in
the
only
regulation
on
that
stream
sector
forbidding
discharge
of
the
identical
materials
they
were
in
fact
discharging.
I
would
also
disagree with the conclusions of the majority opinion
(t~,
7)
regarding
the
alleged
violation
of
Section
12(d)
of
the
Act.
To
me,
the
testimony
of
Mr.
Burton
(R.
144)
(quoted
on
p.
7
of
the
majority opinion)
was a flat admission
that the limestone fines
had
in
fact
washed
to
the
river
during
rains
in
the
past.
One last comment.
The
portions of
the record dealing with technical
testimony
were
poorly
reported
and
it
is
fortunate
the
case did not rest
upon
this.
A
reader
can
perhaps
translate
“milligrams
per
leader”
(R.
213)
to
“milligrams
per
liter”
and
“alluent”,
“affluent”
and
“alluents”
(R,
192,
198)
as
various
forms
of
“effluent.”
But
to
take
‘inez’
(R.
220)
and
to
realize
that “ionize” was meant
or
to
determine
what
was
meant
by
“subcivity”
(H.
200)
is
asking
too
much
both
of
this
Board
and
certainly
of
a
court
sitting
in
review
of
this
record.
~f;
(~
~
1H~L4I,\~/a~
Jacob
D.
Dumelle
4
—
529
1,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
hereby
certify
the
above
Dissenting
Opinion
was
submitted
on
the jjjay
of
May,
1972.
‘~‘v
°~4e
Christan
L.
Motfett,
Cler1.~,
Illinois
Pollution
ControHoard
4—