ILLINOIS POLLUTION CONTROL BOARD

June 9, 1971

ENVIRONMENTAL PROTECTION AGENCY

)

#71—31

v.

SOUTHERN ILLINOIS ASPHALT CO., INC.

LARRY P. EATON, SPECIAL ASSISTANT TO ATTORNEY GENERAL,

FOR ENVIRONMENTAL PROTECTION AGENCY

CRAIG & CRAIG, MOUNT VERNON, ILLINOIS,

FOR SOUTHERN ILLINOIS ASPHAI$ CO., INC.

SEPARATE CONCURRING OPINION (BY MR. LAWTON):

While I have drafted and voted in favor of the Order

and

Opinion

of the Board in this proceeding, I do not feel that the Opinion, as

adopted,

goes

far enough in guiding the Agency as to its action at

such time

as a

permit may be sought by Respondent at its present

location.

The testimony manifests that the operation of the plant severely

affected the comfort and well-being of the adjacent neighbors, with

an adverse effect on their health, limiting the use of their property.

and constituted a source of noise, dirt and annoyance during the entire

period of operation. The plant, when operated, constituted a severe

nuisance and caused air pollution in violation of the statute, even

though its emissions were, so far as the evidence shows, not in excess

of those prescribed by the particulate regulations. We have held

before that compliance with the regulations, which are designed for

general application, does not justify the causing of a nuisance, See

Environmental Protection Agency

v.

Granite City Steel Co., #70-34.

See Section 49(c) of the statute which pointedly makes compliance

with the regulations only a prima facie defense to an enforcement

action based on other grounds, The statute further specifically

requires the Board to consider the degree of injury caused by the

emissions and the ‘~suitability of the pollution source to the area

in which it is 1ocated.’~ Section 33(c). These provisions make it

clear that a source that complies with the particulate regulations

may yet be wholly unacceptable in the wrong place; and the evidence

makes clear that this operatipn is where it does not belong. Indeed,

even the company’s reasons for locating where it did are most uncon-

vincing: It does not use the much—touted railroad, (R.212) and it

could easily and inexpensively have arranged for city water to be piped

a considerable distance beyond the nearest homes.(R.2l3). Thus, it

is evident that the company must be ordered not to operate at all in

its present location, since it cannot do so without causing air

pollution.

/

---

I, Regina S. Ryan, Clerk of the Pollution Control Board,

certify that the above Separate Concurring Opinion was

e ec ted by Samuel T. Lawton, Jr. on the

day of

,

1971.

K,

‘~/~

I

671