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
    86—ff~

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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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    —3—
    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
    86—06

    —5—
    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
    86—07

    —6—
    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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    —7—
    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

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