ILLINOIS POLLUTION CONTROL BOARD
February 4, 1988
RODGER DIAMOND,
Complainant,
v.
)
PCB 84—64
THE CENTER FOR THE
)
REHABILITATION AND TRAINING
)
OF THE DISABLED,
Respondent.
MR. RODGER DIAMOND APPEARED PRO SE; AND
MR. PAUL FINNEL APPEARED ON BEHALF OF RESPONDENT
OPINION AND ORDER OF THE BOARD (by B. Forcade):
This matter comes before the Board upon a formal complaint
filed April 26, 1984, by Rodger Diamond (hereinafter “Diamond”)
against the Center for the Rehabilitation and Training of the
Disabled (hereinafter “the Center”). Diamond alleges that buses
which load and unload students in a driveway located between
Diamond’s property and a building owned by the Center be estopped
from allowing buses to utilize the driveway for loading and
unloading.
Hearing was held on December 10, 1986, at the State of
Illinois Center, Chicago, Illinois. Only the parties and the
Board’s hearing officer were in attendance.
FACTS
Diamond owns a multi—story commercial—residential building
located at 6040 North California Avenue, Chicago, Illinois. The
building houses six apartments and two businesses. The building
is approximately 60 years old (R. 4).
The Center is a private, non—profit, charitable social
service organization. It owns and leases a number of
facilities. The facility at issue consists of a two—story
building located at 6050 North California Avenue, Chicago,
Illinois, which is known as the Byron Center. The Byron Center
was constructed in 1957 and offers a variety of services for the
disabled, including both day—students and residential students.
Diamond’s property and the Byron Center are separated by an
alley which has an approximate 9—foot width. Twice daily, five
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days a week, at approximately 9:00 a.m. and again at
approximately 2:30 p.m. (R. 18), two to three small buses/vans
(R. 31) enter the alley and stop adjacent to an entry/exit which
opens from the Byron Center onto the alley. There the buses/vans
discharge students during the morning period and load students
during the afternoon period. The buses/vans remain in the alley
for approximately 5 to 10 minutes during the morning period and
for an average of 15 minutes during the afternoon period (R. 27—
28).
Diamond alleges that the buses/vans, when stopped in the
alley with their engines running, produce exhaust which enters
his building through windows and vents on the alley—side of his
building.
DISCUSSION
The burden of proof in an enforcement action before the
Board is clearly specified in the Environmental Protection Act
(“Act”), Ill. Rev. Stat. 1985, ch. lili/~, par. 1033(c):
In hearings before the Board under this Title
the burden shall be on the Agency or other
complainant to show either that the respondent
has caused or threatened to cause air or water
pollution or that the respondent has violated
or threatens to violate any provision of this
Act or any rule or regulation of the Board or
permit or term or condition thereof.
The complainant, Mr. Rodger Diamond, therefore, has the
burden of showing that the Center has caused or threatened to
cause air pollution or that the Center has violated or threatens
to violate some provision of the Act or Board rules or
regulations. The Board finds that the Diamond has failed to
carry this burden and the Board will accordingly dismiss the
complaint.
The Board is aware that Diamond is not an attorney and, that
for this reason, he might not be expected to present a case in as
reasoned a form as would be professional in the field.
Nevertheless, the Board finds that the showings which would be
necessary for the Board to find in Diamond’s favor are absent in
the instant matter.
The Board has reviewed the testimony at hearing and believes
two concepts are important in discussing that testimony. First,
the Board is required to accept, as true, the uncontroverted
factual statements offered at hearing. Second, the Board is not
required to accept as true, any conclusory opinions offered as
testimony, where the underlying rationale and facts supporting
the opinion is lacking. The great difficulty with the transcript
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in this proceeding is the paucity of facts to support Diamond’s
position. The record discloses a surplus of unsupported
conclusory opinions. As an example, Diamond testified that:
They come in with their buses. They
stand there 10—15 minutes. And all the
garbage from their exhaust pipes comes into
our building, with the vents, with the bedroom
windows. We got children sleeping there. We
have people sleeping there when they come in
with their buses. (R. 5)
From this uncontroverted factual statement, the Board can
determine that for 10—15 minutes some exhaust fumes from the
buses enter the Diamond’s building through vents and windows at a
time when children and adults are sleeping somewhere within the
apartment building. It is not clear which vents or windows
provide the pathway to the fumes in the alley. The location of
the sleeping adults and children in relation to the portions of
the building that experience fume problems is also unclear, as is
the level of interference.
However, the above factual statements must be distinguished
from the large quantity of conclusory opinions offered as
testimony:
So, what point does he make that these
children have to be in? Why does he have to
kill us? We’re next door. He’s killing us
normal people to save retarded people.
I believe in saving retarded people. But
I don’t believe in making money to kill normal
people in the process. You see my point? Why
kill people, normal people in the process of
trying to save retarded people?
I’m willing to save retarded people and
do everything for them, you know. But don’t
kill me in the process. That’s all I’m
saying. (R. 13)
The Board cannot conclude that the exhaust fumes present a danger
of imminent mortality to the individuals in Diamond’s building
without some factual foundation for that conclusion. Diamond has
presented no credentials to demonstrate his skill in the health
effects of internal combustion engine exhaust fumes and has
presented no rational theoretical basis for the conclusion of
mortality. Additionally, the few facts presented indicate, at
most, a short—term exposure of an unquantified number of people
to some unquantified amount of fumes. This limited exposure does
not support Diamond’s bald assertions and opinions regarding the
degree of interference.
8 6—05
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Despite the repeated statements about “killing” (R. 13, 16),
the Board cannot conclude, based on this record, that mortality
is a reasonably anticipated consequence of the brief exposure to
exhaust fumes.
When stripped of its emotional content, the Board finds the
following facts: for 5—10 minutes in the morning and 10—15
minutes in the afternoon, small buses park adjacent to Diamond’s
property. While they are parked there, the exhaust pipes from
the buses are approximately 12 inches from Diamond’s building.
While they are parked there, certain exhaust fumes from the buses
enter Diamond’s building through vents and windows. During the
period the buses are parked, the fumes preclude Diamond from
using the bathroom (R. 6, 16). During the period the buses are
present, the fumes cause some unquantified level of interference
with Diamond’s use of the building.
Thus, the Board concludes that for a total of 15—30 minutes
a day, Monday through Friday, exhaust fumes preclude Diamond from
using the bathroom and cause some unquantified level of
interference with other uses of the building.
The standard for finding a violation of Section 9(a) of the
Environmental Protection Act (“Act”) as a general nuisance claim
is whether the activity in question causes an unreasonable
interference with the enjoyment of life. Prior to reaching that
conclusion, the Board must consider the factors in Section 33(c)
of the Act:
In making its orders and determinations, the
Board shall take into consideration all the
facts and circumstances bearing upon the
reasonableness of the emissions, discharges,
or deposits involved including, but not
limited to:
1. the character and degree of injury to, or
interference with the protection of the
health, general welfare and physical
property of the people;
2. the social and economic value of the
pollution source;
3. the suitability or unsuitability of the
pollution source to the area in which it
is located, including the question of
priority of location in the area in-
volved; and
4. the technical practicability and economic
reasonableness of reducing or eliminating
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the emissions, discharges or deposits
resulting from such pollution source.
There is substantial testimony in the record regarding the
social and economic value of the pollution source. The
representative of the respondent testified on the following
description of the center:
The Center for the Rehabilitation and the
Training of the Disabled is a private, non-
profit,
charitable
social
service
organization.
The Center provides rehabilitative
services to individuals with disabling
conditions. We have been doing this since
1919 and at this particular site since 1957.
At the site in question, we provide
services to a variety of disabilities. The
building was constructed in 1957 as a school
for retarded children. And indeed we still
are serving children with disabling conditions
as well as adults with disabling conditions.
The children who are being served are
children who have been excluded from the
Chicago public schools. And they have been
excluded because of the fact that they are
behaviorally disordered, meaning they are
prone to outbursts, uncontrollable behavior,
running away, doing things that perhaps could
not be predicted or dealt with in a normal
fashion.
We provide specialized training and
specialized staff for them so that they can
learn to control their behaviors and perhaps
someday be readmitted to the public school
system and maintstreamed into society.
The Center, as it was stated, has been at
the location since 1957. When the building
was constructed, it was constructed with a
side drive at the south end of the property
which abuts the property that the Complainant
represents or owns.
The school was constructed in such a way
as to allow loading and unloading at that
south end of the building so as to provide for
a sheltered and protected way for these
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disabled children to get into and out of the
buses on a daily basis. (R. 9—11)
There was also testimony from respondent’s representative on why
use of the side drive was necessary.
The behaviorally disordered children,
however, do not have any mobility problems.
Perhaps their mobility problems might be in
the other direction, in that they’re too
mobile. And they have a tendency to run
outdoors, take off, act uncontrollably perhaps
at times. So, they are loaded and unloaded
using the side drive.
****
There is a reason for our using the side
drive. Our reason is that, as I stated, the
children who are loaded using the side drive
are the children who have in the past
exhibited and continue to exhibit behavioral
problems, outbursts and are difficult to
control.
Our experience in loading these children
out on the street or in the alley is that they
can tend to run away, run out into traffic.
And we feel that from a safety standpoint
we’re better off using that side drive for
loading and unloading. That’s what the side
drive was designed for. (R. 23, 31—32)
Consequently, based on this factual testimony, the Board finds
there is great social value to the Center’s activities in general
and to the use of the side drive for loading the behaviorly
disordered children in particular.
In sum, the Board finds that for the very brief periods of
time involved and the minimal factually proven interference to
Diamond’s use of property does not outweigh the social value of
the Center’s use of the side drive. Consequently, the Board
finds that Diamond has failed to prove a violation of Section
9(a) of the Act and this matter is dismissed.
This Opinion constitute the Board finds of fact and
conclusions of law in this matter.
ORDER
1. There is insufficient evidence in the record to show that
respondent, The Center for the Rehabilitation and Training of
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the Disabled, has violated the Environmental Protection Act
or rules and regulations of the Illinois Pollution Control
Board.
2. This proceeding is hereby dismissed.
IT IS SO ORDERED.
Board Members J.D. Dumelle, J. Anderson and J. Marlin
dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby cer i that the~boveOpinion and Order was
adopted on the
_____
day of
-
~
,
1988, by a vote
of ~ -3
.
Dorothy M. nfl, Clerk
Illinois Pollution Control Board
86—09