ILLINOIS POLLUTION CONTROL BOARD

November 7, 1985

t4AURINE BACFIERT,

an Individual,

Complainant,

v.

)

PCB 85—80

VILLAGE OF TOLEDO ILLINOIS,

a Municipal Corporation and

VICTOR L. WILSON, JOHN SCOTT,

)

KURT SCOTT, KENNETH MENDENHALL,

Individually,

Respondents.

MS. MAURINE BACHERT, COMPLAINANT, APPEARED PRO SE;

MR. BOBBY SANDERS APPEARED ON BEHALF OF THE RESPONDENT, ViLLAGE

OF TOLEDO;

MR. KURT SCOTT, RESPONDENT, APPEARED PRO SE.

CONCURRING OPINION (by J. D, Dumeile):

Let me say at the outset that I agree that the Board~s

decision in this matter is procedurally and legally correct.

Yet,

it troubles me because it so clearly points up a

shortcominq

of

our environmental protection program in this State.

Under the Illinois constitution every citizen has the right

to a healthful environment. Under the Illinois Environmental

Protection Act, every citizen is granted the power to file

complaints against those who pollute in order to protect that

right. But cases such as this serve to demonstrate how hollow

that power can be.

Maurine Bachert brought this complaint because she believed

that there were people in her community that were causing and

allowing air pollution which interfered with her enjoyment of

life. She attempted to remedy that perceived wrong on the local

level, and, failing that, on the state level before this Board,

where she has now again failed,

~Jhydid she fail? Not because she was wrong, but rather

because she did not adequately present her case. The majority

points out that “the decision in this matter is based on a lack

of sufficient evidence,” (Op. at 5). This does not mean that

sufficient evidence does not exist, but rather that insufficieri~

evidence was placed in the record of this proceeding. Of course!

the Board’s decision must be based on what is in the record

before it.

68-285

---

—2—

Over the years the enforcement process has become

increasingly legalistic. In turn, it has become increasily

difficult for citizens to successfully prosecute cases before the

Board without an attorney. The problem is not new; it is simply

becoming worse. The Board has historically been more lenient to

citizen prosecuters and in fact has a procedural rule Section

103.200(h) which allows the hearing officer to “examine and

cross—examine any witness to insure a clear and complete

record.” Yet, the hearing officer cannot act as the prosecuter

and make the citizen’s case.

In this case Mro. Bachert probably felt that she had a

simple case. She looked around her and saw fires in drums around

the community. She smelled smoke and it bothered her. She

complained to the \illage and it didn’t stop. Therefore, she

probably reasoned: the individuals who were doing the burning

were causing pollution and the Village was allowing it. She came

before the Board aoh told her story and expected the Board to

stop it.

It is not th~ simple. In order to prove her case Mrs.

Bachert had to pre~ent evidence establishing who was burning

what, and when and ~iherethe burning was done. Beyond that she

needed to present evidence that the Village of Toledo in some

manner condoned violations of the State’s open burning

prohibition.

As the majority opinion points out, the necessary evidence

was presented concerning only two instances of burning. One of

those instances involved a person who was not named in the

complaint. In that case the authorities responded and the fire

was put out, In the other instance, Mr. Scott testified that the

burning fell within an exception to the prohibition. Since Mrs.

Bachert did not even see the materials being burned, the Board

reasonably concluded that Mr. Scott was not in violation of the

law.

The closest Mrs. Bachert comes to presenting adequate proof

is through her log. (Compi. Ex. 1). Yet, that log does not

indicate where the burning took place and only states a

conclusion as to what was burned. This log certainly could have

served as a useful tool upon which to base more complete

testimony, but Mrs. Bachert in large part failed to supplement

that information at hearing. Similarly, the photographs,

standing alone, prove little. Some explanation of what they show

is necessary to establish violations. Even if the entire log and

all of the photographs had been properly placed into evidence,

the Board could not find violations based upon them alone.

The hearing officer in this case could have given somewhat

greater assistance to Mrs. Bachert, and probably should have,

However, to give sufficient assistance, he would have had to make

her case for her which would be clearly improper. A hearing

officer is, after all, responsible for providing a neutral and

fair forum, and is riot

to

be an advocate for either party.

66-286

---

—3-.

Based on the record, I believe that open burning violations

have occurred in the Village of Toledo but that specific

instances of such burning have not been proven, nor has the

Village been proven to allow such violations. If Mrs. Bachert

had an attorney, the result may have been different, but the

present system is not set up to provide her one. Perhaps it

should be.

For these reasons, I concur.

I, Dorothy M. Gunn, Clerk o~the Illinois Pollution Control

Board, hereby certify that the above Concurring Opinion was

adopted on the

/J~

day of

_________________..

1985.

~

Illinois Pollution Control Board

66-287