ILLINOIS POLLUTION CONTROL BOARD
June 15,
1995
DECATUR AUTO AUCTION,
)
Complainant,
V.
)
PCB 93—192
(Enforcement-Air)
MACON COUNTY FARM BUREAU,
INC.,
)
MACON COUNTY FAIR ASSOCIATION,
)
and MACON COUNTY HORSEMEN’S
)
ASSOCIATION,
Respondents.
DISSENTING OPINION
(by J. Theodore Meyer and G. Tanner Girard):
We respectfully dissent from the majority’s opinion and
order which found respondents in violation of Sections 9(a)
of
the Illinois Environmental Protection Act
(Act), and Section
212.301 of the Board’s regulations.
(35 Ii. Adm.
Code 212.301..)
The majority’s opinion and order directed respondents to initiate
a continual dust suppression program, and required respondents to
appoint an on—site coordinator for overseeing the treatment and
maintenance of the racetrack.
Section 9(a)
of the Act provides:
No person shall:
(a)
Cause or threaten to allow the discharge or
emission of any contaminant into the environment
in any State so as to cause or tend to cause air
pollution in Illinois,.. .or so as to violate
regulations or standards adopted by
the Board
under this Act.
(415 ILCS 5/9
(1992).)
As the majority correctly
stated,
violations of Section 9(a)
can
be addressed in two types of actions:
nuisance violations, and
violations of the Board’s air regulations standards.
First and foremost, we
believe that respondents’ racetrack
and stable are exempt from
a nuisance action under the Act
pursuant to Illinois’ Farm Nuisance Suit Act, which provides in
pertinent part:
No farm or any of
its appurtenances shall be or become
a private or public nuisance because of any changed
conditions
in the surrounding area occurring after the
farm has been in operation for more than one year,
•
.
provided that the provisions of this Section
shall not apply whenever a nuisance results from the
2
negligent or improper operation of any farm or its
appurtenances.
(740 ILCS 70/3
(1992).)
In this section,
“farm”
is defined as:
any parcel of land used for the growing and
harvesting of crops;
for the feeding, breeding and
management of livestock for dairying or for any other
agricultural or horticultural use or combination
thereof.
(740 ILCS 70/2
(emphasis added).).
The racetrack in question houses,
feeds and manages between
50 and 60 horses in its stables on a yearly basis.
Therefore,
respondents’ racetrack falls under the definition of “farm” found
in Illinois’ civil liabilities statutes.
In addition, the
racetrack was established in 1955,
in a clearly rural area.
The
businesses currently adjacent to the racetrack and fairgrounds
are “changed conditions
.
.
.
occurring after the farm has been
in operation for more than one year”.
(Id.)
Finally, we do not
find evidence in this record of negligent or improper operation
of the racetrack.
Respondents voluntarily apply a dust
suppressant to the track each year.
In addition, dust blown from
one property to another is a common phenomenon in rural areas;
Decatur Auto Auction cannot be heard to complain when it
knowingly came to this condition.
Secondly, even if the racetrack was not considered
a farm,
and therefore exempt from a nuisance suit,
after considering the
Act’s Section 33(c)
factors, we are not persuaded that the track
dust unreasonably interferes with complainant’s pursuit of its
business.
(See Wells Manufacturing Co.
v. Pollution Control
Board,
73 Ill.2d 226,
383 NE.2d 148(1978).)
No one disputes the
socio—econonuic value of the racetrack,
its location suitability
or the fact that it has priority of location.
However, the
majority found that the character and degree of harm suffered by
complainant due to poor maintenance of the track
justified
further financial expense to reduce the emissions.
We disagree.
Since 1987,
respondents have recognized that dust is
generated from their racetrack and have voluntarily undertaken a
dust suppressant treatment program.
This program decreased the
amount
of dust blown from the track and kept the track
in
compliance with the Act; however,
it did not eliminate dust
emissions completely.
Complainants are asking Horsemen’s
Association, the party responsible for the track’s maintenance,
to spend $5,000 for two treatments per year,
or about one third
of its annual fee income.
In addition, the opinion and order
directs respondents to appoint an on—site coordinator to oversee
the treatment and maintain the track,
which may create additional
expense.
These added expenses are to be undertaken with no
guarantee that dust emissions will be reduced to complainant’s
satisfaction.
(See Tr.
at 121-123.)
What is to stop complainant
3
from repeatedly suing respondents, asking for three,
four,
or
five treatments per year?
Since respondents are voluntarily
complying with the Act,
and the added expense does not guarantee
a solution to the dust emissions, we find that respondents did
not create a nuisance violation.
Finally, we consider whether or not respondents violated any
Board regulations.
Section 212.301 prohibits fugitive emissions
from “any process including any material handling or storage
activity”.
“Process” is defined
in the American Heritage
Dictionary as a system of operations utilized in production.
From its plain language, Section 212.301 only applies to
industrial operations.
A racetrack located on county fairgrounds
is not an industrial operation.
Further, the Agency testified at
hearing that “fugitive dust is really only a problem if it’s
causing a complaint situation because you have fugitive dust
going on all the time.”
(Tr. at 96.) Therefore, Section 212.301
is inapplicable to the case at bar.
As a final note, we emphasize that complainant knowingly
bought property in a rural area next to a track where horses have
been racing since 1955.
Surely they were aware that horses and
sulkies create dust on dirt tracks.
If complainant was bothered
by the dust,
several options could have been implemented to
alleviate the problem.
For the reasons set forth above, we dissent.
Y.
Theodore Meyer
Board Member
G
Tanner Girar
Board Member
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that
e above dissenting opinion was filed
on the
‘~-
day of
________________,
1995.
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~
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Dorothy M. $~nn,Clerk
Illinois P~lutionControl Board