ILLINOIS POLLUTION CONTROL BOARD
October 4,
1978
PEOPLE OF THE STATE OF ILLINOIS
)
and ENVIRONMENTAL PROTECTION
)
AGENCY,
Complainants,
V.
CONSOLIDATED
FREIGHTWAYS
CORPORATION
)
OF
DELAWARE, a Delaware corporation;
)
MICHIGAN CHEMICAL CORPORATION,
a
)
PCB 76-107
Delaware corporation;
RED BALL MOTOR
)
FREIGHT,
INC.,
a Delaware corporation;
)
HULCHER
EMERGENCY
SERVICE,
INC.,
an
)
Illinois corporation; CITY OF
MORRIS,
)
ILLINOIS,
a municipal corporation;
)
and ALBERT PFAFF d/b/a PFAFF CON-
)
STRUCTION,
Respondents.
MR. JEFFREY S.
HERDEN AND MS. CAROL PEARCE,
ASSISTANT
ATTORNEYS GENERAL, APPEARED ON BEHALF OF THE PEOPLE
OF
THE
STATE
OF
ILLINOIS
AND
THE
ENVIRONMENTAL
PROTECTION
AGENCY.
MR.
JOHN
L.
PARKER,
PARKER
&
HENSS,
APPEARED
ON
BEHALF
OF
CONSOLIDATED FREIGHTWAYS CORPORATION.
MR. WILLIAM C. LATHAN APPEARED ON BEHALF OF CONSOLIDATED
FREIGHTWAYS CORPORATION.
MR.
STEPHEN CORN,
CRAIG
& CRAIG, APPEARED ON BEHALF OF
MICHIGAN CHEMICAL CORPORATION.
MR.
J. RICHARD CHILDERS,
PETERSON, ROSS,
RALL,
BARBER
& SEIDEL, APPEARED ON BEHALF OF RED BALL MOTOR FREIGHTS,
INC.
MR. WILLIAM J. HANLEY,
SORLING, NORTHRUP,
IfANNA, CULLEN
&
COCHRAN, APPEARED ON BEHALF OF HULCHER EMERGENCY SERVICE,
INC.
MR. FRANK
3. BLACK, BLACK
& BLACK, APPEARED ON BEHALF OF
CITY OF MORRIS.
MR. JOHN ROOKS, HYNDS
& HYNDS, APPEARED ON BEHALF OF
ALBERT
PFAFF D/B/A PFAFF
CONSTRUCTION.
OPINION AND
ORDER
OF
THE
BOARD
(by Mr. Young):
On June
3,
1976,
the People of the State of Illinois and
the Environmental Protection Agency filed a five—count Amended
31—5S3
—2—
Complaint against six Respondents, Consolidated Freightways
Corporation of Delaware (Consolidated), Michigan Chemical
Corporation, Red Ball Motor Freight
(Red Ball), Huicher
Emergency Service, Inc.,
and Albert Pfaff d/h/a Pfaff
Construction.
The Amended Complaint alleged air pollution
violations as defined by Sections 3(b) and 3(d)
in violation
of Section 9(a) of the Environmental Protection Act
(Act)
against Respc~ndents,Michigan Chemical, Red Ball and Consoli-
dated for causing or allowing bromine emissions to be dis-
charged to the ambient air of this State from a Consolidated
carrier while in transport on Interstate
55
—
US Highway 66
approximately two miles north of Dwight, Illinois.
The
Amended Complaint further alleged that Respondents Consolidated
and Hu.cher
caused or allowed refuse and other debris collected
at the site of this occurrence to be disposed of at a landfill
site without an Operating Permit as required by Rule 202(b)
and in
violation of Section 21(f)
of the Act.
Respondent Consolidated
is also charged with violating the Rule 310(h) provisions of
Chapter
7 prohibiting the disposal of hazardous or liquid
wastes and sludges without authorization by a permit.
Charges
against Respondents Morris,
Illinois, and Albert Pfaff alleged
violations
of Rules 202(h)
and 310(b)
of Chapter
3 and Sections
21(b)
and
(e)
of the Act for operating a landfill site without
a permit and by accepting hazardous or liquid wastes and sludges
without a permit.
Before reviewing the substantive matters of this case, the
Board must find,
as a matter of law, that it, as any judicial
or quasi-judicial body, has jurisdiction over subject matter
which is concurrently controlled or regulated
by
federal safety
regulations, here the U.S. Department of Transportation’s
“Hazardous Material Regulations”
(49 CFR 170—79,
397).
Hazardous materials, which are subject to these portions of
Title 49 of the Code of Federal Regulations, come under the
jurisdiction of the Board pursuant to Sections
5 and 31 of
the Act when sufficient charges are raised alleging violations
of the enforceable provisions of the Act or the Rules adopted
thereunder.
In this case,
there
is no conflict between our
Act and Rules concerning the alleged air and waste disposal
violations and the federal transportation safety requirements
on packaging, marking, labeling, documentation and transporta-
tion of hazardous materials.
The Supreme Court has upheld a
similar distinction in
Huron
Portland Cement v. Detroit,
362
u.S. 440
(1976) where local air regulations were held valid
against a harbored vessel subject to federal marine regulations.
The Supreme Court found that state regulations manifest of its
police power are not pre-empted unless there
is overlap between
the federal regulation and the enactment by the state or local
body.
Huron Portland Cement Co.
(Ibid.),
446.
Other Supreme
Court decisions have indicated that state regulations are
superseded only where the conflict is so “direct and positive”
that the two cannot “he reconciled or consistently stand
toqether.”
Kelly v. Washington,
302 U.S. 1, 10
(1937).
More
recently, the Supreme Court held that for pre-emption the
state regulation must be “absolutely and totally repugnant
and contradictory.”
Goldstein v. California,
412 US.
546,
553
(1973).
Four hearings were held on this matter from June 7,
1977,
through June 10, 1977, which generated a lengthy record of
756 transcript pages, and subsequently, numerous motions and
responses were filed by the parties Complainants and the
Respondent Consolidated.
The motions to be considered with
this Opinion include:
Complainants’ Motion for Costs, August
17,
1977, and Consolidated’s Response, August 24,
1977;
Consolidated’s Opposition to Stipulations and Proposal for
Settlement, September
8,
1977, and Complainants’
Response,
September 20,
1977; Consolidated’s Motion to Correct Hearing
Officer’s Errors, September 13,
1977, and Complainants’
Response, September 20,
1977;
and Conso1idated’~sMotion to
Dismiss of September 13,
1977, and Complainants’ Response dated
September 20,
1977.
The Board will consider these motions as
each becomes material to the issues in question in this matter.
MOTION TO DISMISS PARTIES’
MICHIGAN CHEMICAL,
RED
BALL,
& HULCHER
At the beginning of the
June
7,
1977, hearing, Complainants
entered motions to dismiss Michigan Chemical Corp.
(R.
124),
Red Ball Motor Freight,
Inc.
(R.
140)
and Hulcher Emergency
Services
(R.
251) on the basis of insufficient evidence against
the respective parties.
On August 11,
1977, Complainants
formally filed before this Board a Motion to Dismiss the above
Respondents.
Consolidated responded in opposition to this
Motion on August 17,
1977.
After considering this matter, the
Board granted Complainants’ Motion on August
18,
1977,
to dismiss
Michigan Chemical, Red Ball, and Hulcher as parties Respondents
to this action.
STIPULATIONS
& PROPOSALS FOR SETTLEMENT
CITY OF MORRIS
& ALBERT PFAFF
During the June 7,
1977,
hearing,
the Complainants entered
into the record Settlement Agreements for~the Board’s considera-
tion with Respondent City of Morris
(R.
16-23)
and Respondent
Albert Pfaff
(R.
36-44).
The Stipulations and Proposals for
Settlement were also filed with the Board on June 21,
1977.
Respondent Consolidated objected to their entry at the hearing
(R.
32) and moved to strike paragraphs
5 and
6 of the Morris
Stipulation
(R.
34); Consolidated also submitted comments on
the Stipulation from Albert Pfaff
(R.
48-9).
On September 20,
1977, Consolidated filed a Motion in opposition to the above
Settlement Agreements and
in
its Motion to Correct Errors made
by Hearing Officer, dated September 13,
1977, Consolidated
31—55
5
—4—
claimed
that
the presentation of the above Settlement Agreements
surprised
and
materially
prejudiced
Consolidated’s
right
to
a
fair and impartial hearing.
Respondent Consolidated thereby
claimed that it was improperly denied several motions for
continued discovery by Hearing Officer.
Beginning with Consolidated’s claims concerning the termina-
tion of discovery and against the introduction of the Settlement
Agreements at the hearing, the Board cannot find how Settlement
Agreements to which Respondent Consolidated was not a party
would affect its rights at hearing or entitle Respondent to an
extension of discovery.
Complainants’ statement that Stipulations
are not binding on other parties
(R.
30) happens to be correct.
The testimony and comments offered to this record by Respondents
not party to the Settlement Agreements are of no interest to the
Board unless the offerings are within the scope of the Procedural
Rules.
For consideration under Procedural Rule 331(b), the
testimony of interested persons will be limited to the nature
of the alleged violation and its impact on the environment
together with the views on the proposed Stipulation and Settlement.
CITY OF MORRIS
The City of Morris
is
a municipal corporation which owns
a tract of land used as a landfill site in the Southeast Quarter
of the Southwest Quarter of Section 35, Township 35 North, Range
7, East of the Third Principal Meridian in Grundy County,
Illinois.
Morris stipulated that it hired Albert Pfaff to operate their
landfill in August,
1972,
for an annual salary of $1200 plus all
gate receipts.
In November, 1973,
the Board in PCB 73-107,
10
PCB
9, found the City of Morris in violation of the landfill permit
provisions of the Act;
the City was fined $400 and was ordered to
obtain the permits from the Agcncy.
The Stipulation indicates
that the Agency issued Morris
a development permit on December 31,
1973,
but that Respondent did not acquire the required operating
permit until July 30,
1977, after the Illinois Attorney General
filed suit for an injunction on August 15,
1975,
and after this
Amended Complaint was issued against Morris
(Stip.
3).
Since commencement of this action, Morris has taken measures
for greater control over this landfill.
From August 16,
1976,
to March 28,
1977,
a Morris representative has made daily in-
spections of the site to ensure that the operation was in com-
pliance with the requirements of the Rules and the Act.
On
March 28,
1977,. Morris assumed operations of the landfill site
using its
own
employees
(Stip.
4,
5).
In paragraphs
5 and
6 of the Settlement, Morris and Corn-
plainants stipulate to a certain chain of events which exposed
the City to liability under the Board Rules and the Act.
Para-
graph
5 states that a Consolidated tractor-trailer combination
was involved in an occurrence,
a
bromine spill, which caused
~33-c!~6
Consolidated to hire Ilulcher to clean up the spill.
Parties
further agree that Hulcher transported the bromine material
and other debris to the Morris landfill for disposal and
covering.
Paragraph
6 states the wastes were deposited after
April
12,
1977, without the prior knowledge of Morris.
The
parties stipulate that these statements show violations of
Rule 202(b) (1) of Chapter
7 and Section 21(e) of the ~ct for
operating its site without the necessary permits, hut that
Rule 310(b)
of Chapter
7 should be dismissed with prejudice
(Stip.
3,
5).
The
Board will accept these stipulated facts only for the
purposes of this ~ett1ement Agreement.
Factual statements
in
paragraphs
5 and
6 pertaining to other parties have bearing in
this matter only insofar as each fact involves the Respondent
Morris.
The Poarci finds that the stipulations between parties
sufficiently show that City of Morris
w~s
in violation of the
permitrequirements
in
flule
202(b) (1)
of Chapter
7 and Section
21(e)
of the Act fron’ November
8,
1973,
through July
30,
1976.
The Board will dismiss the alleged violation of Rule
310(b)
of Chapter
7 for want of
a factual
showi.ng that Morris accepted
the bromine material at its landfill site after April
12, 1976.
The Section 21(h) viclation prohibiting open dumping will also
be dismissed;
the
floard has consistently held that an operating
permit violation does not constitute
a violation of Section
21(h)
of the Act.
Paw Paw,
PCB 75-358,
21 PCP 301; Flowers,
PCB 75—408,
22 PCB 131.
In considering the section 33(c)
factors of the Act, the
Eoard finds that
the landfill haz social and economic value
which
is
presently
a
suitable
site
for
the
City
of
~‘1orris.
However,
the
potential
for
air
and
water
pollution
or
other
environmental
harm
cannot
be
balanced
against
the
economic
value or the convenience of unpermitted use of this site in
light of the technical practicability or the economic reasonable-
ness for operating the Morris landfill site in compliance with
the provisions of the Act and the Board Rules.
Accordingly,
the Board will assess the stipulated penalty of $750.00 for
violations found herein.
ALBERT PFAFF d/b/a PFAFF CONSTRUCTION
The other Stipulation and Proposal for Settlement submitted
for consideration at the June
7,
1977,
hearing involved certain
allegations against the Resnondent,
J\lhert Pfaff for operating
a solid waste management site in violation of Rule 202(b) (1)
of
Ch~-ipter 7 and Section 21(e)
of the Act and for causing or
allowing the acceptance of hazardous or liquid wastes in viola-
tion of Rule 310(b)
of Chapter
7 and Section 21(h)
of the Act.
31—557
—6—
Respondent Albert Pfaff was engaged by the City of Morris
in August, 1972, to operate the Morris landfill site located
in Grundy County for an annual salary of $1200.00 plus all
the gate receipts
(Stip.
1,
4).
In paragraphs
5 and
6 the parties stipulate to certain
facts regarding the occurrence on April 12, 1976,
involving a
Consolidated tractor-trailer combination.
Paragraph
5 states
that the Consolidated carrier spilled approximately 200 quarts
of bromine at a location on 1-55 approximately two miles north
of Illinois Route
47.
Subsequently,
Respondent Pfaff stipulated
that Consolidated hired Huicher to clean up the bromine.
Hulcher
applied lime and water, collected the bromine material and other
debris, and transported it to the Morris landfill in Grundy
County.
In paragraph
6 the parties agree that Pfaff accepted
bromine material and other debris at the Morris landfill from
persons working under the direction and control of Consolidated
(Stip.
2,
3).
During the June
7,
1977,
hearing, Consolidated objected
to Respondent Pfaff’s stipulation to background facts
in
paragraph
5 and to his characterization in paragraph
6 of
material disposed at the Morris site as bromine material
(R.
48—49).
In a formalized Objection filed September
8,
1977,
Consolidated claimed that the stipulated facts are pure hearsay
and unsupported conclusory statements improperly admitted into
the record.
Consolidated’s objections are without merit.
The stipu-
lated facts by the very text of the Settlement Proposal are
limited to the parties in question
(Stip.
1,
2).
Factual
statements in paragraphs
5 and
6 have bearing in this matter
only as each fact describes a chain of events and conduct which
caused Respondent Pfaff to be in violation of the Act or Rules.
The Board will therefore dismiss Consolidated’s objections. as
irrelevant to the Settlement Agreement before
us.
In view of these stipulated facts,
the parties agree that
the alleged violations of Rule 202(b) (1)
should be dismissed
with prejudice.
Complainants state that the stipulated facts
clearly show that Respondent Pfaff violated Rule 310(h)
of
Chapter
7 and Section 21(b)
of the Act.
The Respondent Pfaff
does not admit to these violations, but offers no evidence to
refute the factual statements in the Settlement Proposal.
The Board accepts the Stipulation and Proposal for Settle-
ment submitted by the Complainants and Respondent Pfaff and
finds that the stipulations sufficiently show that Respondent
Albert Pfaff accepted hazardous or liquid material in violation
of Rule
310(b)
of Chapter
7 and Section 21(b)
of the Act.
The
31—558
—7—
allegations
against
Respondent
Pfaff
of
violating
Rule
202
(b) (1) of Chapter
7 and
Section
21(e)
of
the
Act
will
be
dis-
missed with prejudice.
In assessing a penalty for these violations, the Board
has reviewed the provisions in Section 33(c) of the Act.
Based
on this record the Board finds that the landfill site has
social and economic value suitable for the needs of the City
of Morris.
However, the value of the landfill site cannot he
weighed against
potential
environmental
harm
resulting
from
unpermitted use of the site.
Under these circumstances the
Board will assess the stipulated penalty of $750.00 for viola-
tions found herein.
CONSOLIDATED FREIGHTWAYS
Before considering the merits of the case against Consoli-
dated, the Board will deal with a proliferation of procedural
matters including the offers of proof in the record, the ob-
jections to exhibits and the many objections and motions to
strike submitted by the parties Complainants
and
Respondent
Consolidated which appear in the record and are derived from
Consolidated’s potiOn to Correct Errors Made by Hearing
Officer at the Hearing filed September 13,
1977.
Offers of Proof submitted to this record include the expert
testimony of Consolidated’s witnesses Mr. Stanley Sedivy
(R.
602-5,
652)
and Mr. Guy Cutler
(R.
586).
Also submitted to the
recordwas Complainants’ Offer of Proof of Mr. Marvin Runyon
(R.
552).
It is within the discretion of this Board to determine
whether the subject is a proper one for expert testimony and
whether the witness
is qualified by special knowledge and skill.
Gibson v. Healy Bros.
and Company,
109 Ill.App.2d,
342
(1969).
In this case,
the Board will accept the testimony of Mr.
Stanley
Sedivy as an expert on the physical and chemical effects and
responses of packing and packaging materials used in this bromine
shipment.
However, we will reserve our determination on whether
Mr. Sedivy’s technical testimony serves as a competent defense.
The Board will reject the Offer of Proof by Mr. Guy Cutler
on the basis that this witness was not qualified in law so as
to provide competent legal conclusions.
t’7hile it is proper for
Mr. Cutler to describe the conduct of Respondent pursuant to
specified rules and regulations,
legal conclusions and determina-
tions of fact are matters which rest with this Board.
31—559
—8—
The
Board
will
dismiss
Complainants’
Offer
of
Proof
of
Marvin
Runyon
since
any
supplement
to
Interrogatories
submitted
on
the
third
day
of
hearings
would
surprise
and
prejudice
the
Respondents
to
this
proceeding.
Exhibits received into this record from Complainants
include Exhibits 1, and
3 through
8, and 10.
Respondent
Consolidated Exhibits 1,
2,
4,
5,
6,
7 and
8 were admitted
into the record, Exhibit #3 was rejected in full, and Exhibits
#9 and #10 were rejected hut sukmitted by Respondent as Offers
of Proof.
Consolidated objected to the admissibility of
Complainants’ Exhibits
#1, and #3 through
US
and #10; Com-
plainants objected to Consolidated’s Exhibits #3 through #6.
In reviewing Respondent’s objections to Complainants’
Exhibits #1 and
#3 through #8 and Exhibit #10, Consolidated’s
accident report, the Board will sustain Hearing Officer’s
ruling accepting Exhibits #1 and
#3 through #8 into evidence,
butwe will reverse Hearing Officer’s decision to accept Com-
plainants’ Exhibit #10 on the basis that the Complainants failed
to establish a proper foundation as required by Supreme Court
Rule 236 for the admission of a business record as an exception
to the hearsay rule.
Complainants’ objections to the exhibits submitted by
Respondent included objections to Exhibit
4t3,
a resume of Mr.
Sedivy’s qualifications; Fxhibit
#4
a bromine bottle; Exhibit
#5 its
cap; and Exhibit #6 Complainants’ objection limited
to
pictures not taken by Mr.
Sedivy.
The Board will accept the
Hearing Officer’s ruling and admit Respondent’s exhibits into
evidence.
Consolidated also submitted Interrogatories Exhibits
#7
through #10 to prove chain
of
possession of the packing and
packaging materials
(Exhibit #7)
and to serve as admissions by
the party responding to the Interrogatories
(Fxhibit #8-10).
The Board will reject all offerings of
tnterrogator.ies for
failure to show pursuant to Procedural Rule 313(c) that ex-
ceptional circumstances prevented the responding parties from
appearing at this hearing.
We have reviewed certain exceptions raised in the record
and in the Motions by the parties Complainants and Respondent
Consolidated.
The Board will’ uphold the Fearing Officer’s
ruling which:
Denied Consolidated’s Motion for Continuance
(R.
14-15).
Overruled Consolidated’s objection to examination of
Complainants’ Witness Mr. Shankle as an adverse
witness
(R.
55—5E)
—9—
Overruled
Consolidated’s
objection
to
testimony
on
the
basis
that
Mr.
Shankle
had
personal
experience
with
spilled
bromine
(R.
66—67,
69—70,
73).
Sustained Complainants’ objections to Consolidated’s
questions
CR.
74,
75,
77).
Sustained
Complainants’
objection
to
Consolidated’s
question concerning compliance with U.S. DOT regu-
lations
(R.
103—104).
Denied Consolidated’s Motion to Strike the drop
test testimony of
Mr.
Shankle
(R.
113—14,
123—24).
Overruled Consolidated’s objection to a question of
Michigan Chemical
(R.
114-15).
Overruled Consolidated’s Motion to Strike testimony
of
Mr.
Shankle
CR.
122—23).
Denied Consolidated’s Motion to Strike affidavit of
Mr. Wallace.
Sustained Complainants’ objection to Consolidated’s
question
(R.
160).
Overruled Consolidated’s objection to Complainants’
question
(R.
193).
Overruled Consolidated’s Motion to Strike testimony
of Mr. Bean
CR.
238-9).
Denied Consolidated’s Motion for Continuance
CR.
258—62)
Sustained Huicher’s objections to Consolidated’s
questions
CR.
249, 249—51).
Sustained Complainants’ objections to Consolidated’s
questions
CR.
313—14,
323(3),
324—346).
Overruled Consolidated’s objection to testimony of
Complainants’ Witness Mr.
Birk.y
(R.
377).
Sustained Complainants’ objections to Consolidated’s
questions
CR.
428, 429—30,
430—31,
431, 437—38,
440,
441—42).
Sustained Complainants’ objection to Consolidated’s
question to Consolidated’s Witness Mr. Cutler con-
cerning investigative report of U.S. DOT on the basis that
it was hearsay
CR.
587—88).
3l—56i~
—10—
Sustained
Complainants’
objection
to
Consolidated’s
Witness Mr. Cutler’s testimony about the state-
ments of another witness as hearsay; the Board will
strike the answer of this witness
(R.
594).
The
Board
will
also
uphold
Hearing
Officer’s
decision
to reject Consolidated’s objection
(R.
662—3).
The
Board
will
overrule
the
Hearing
Officer’s
ruling
which
allowed the testimony of Complainants’ Witness, Mr. Charles
Clark,
on
matters
concerning
the
chemical
reactions
and
properties
of
bromine,
water,
and
calcium
bromide
for
two
reasons:
The
testimony is based on hearsay and Mr.
Clark was qualified as
a
sanitary engineer and not as an expert in chemistry and chemical
properties
CR.
496—98,
731).
Testimony referring to the personal
experiences of the witness with bromine is of course admissible
into evidence
CR.
502-3).
Other rulings of the Hearing Officer which the Board will
overturn include the decisions which:
Sustained Complainants’ objection to Consolidated’s
question to Complainants’ Witness
Mr.
Cavanaugh
CR.
533—34).
Sustained Complainants’ objection to testimony of
Consolidated’s Witness Mr.
Cutler on the basis
that the testimony merely interpreted U.S. DOT
regulations;
the Board finds the testimony is
admissible for the limited purpose of determining
what Consolidated did after consulting the U.S.
DOT and other regulations
(R.
574-77).
Sustained Complainants’ Notion to Strike testimony
of Consolidated’s Witness Mr. Cutler as non—responsive
to the question.
The Board finds that Complainants’
Motion is improper and will admit the evidence to
the record
CR.
590-91).
Sustained Complainants’ objection to testimony of
Consolidated’s Witness Mr. Cutler; the Board
finds
that the testimony is not hearsay but is within the
competence of witness’ expertise.
The answer will
be admitted into evidence
CR.
595-96).
Sustained
Complainants’
Motion
to
exclude
Consolidated’s
Exhibit #3,
a resume o~Consolidated’s Witness Mr.
Sedivy’s experience
(P.
610-12).
The Amended Complaint filed with the Board on June
3,
1976,
charged that on the date of this occurrence,
April
12,
1976;
Respondent Consolidated Freightways caused or allowed bromine
emissions to be discharged into the atmosphere
so as to cause
air pollution in violation of Section 9(a)
of the Act
as defined
by Sections
3(b) (Air Pollution)
and
by. 3(d) (Contaminants)
of the
31—562
—11—
Act.
The
Amended
Complaint
also
alleqed
that,
subsequently,
Consolidated disposed of or caused the disposal of refuse
in violation of Section 21(f) of the Act at a landfill site
which did not have
art operating permit as required by Rule
202(b)
of Chapter
7:
Solid Waste Regulations, and was not
authorized to accept hazardous or liquid wastes by a permit
as required by Rule 310(b) of Chapter
7.
AIR POLLUTION
The facts in the record concerning the charges of air
pollution focus on the circumstances surrounding a shipment
of bromine transported by Consolidated on April 11th and 12th,
1976, on 1—55 US-66.
The record discloses that Consolidated
owned and operated
a tractor attached to a double trailer load
which left the St. Louis Terminal on April 11,
1976,
at 9:00
p.m., carrying a shipment of 200 cases of bromine in the front
end of the first trailer
CR.
166,
173,
590).
At approximately
2:00
a.rn.
on April
12,
a Dwight Officer stopped Respondent’s
tractor-trailer
1
1/2 miles north of Dwight, Illinois, on 1—55
US—66 to warn the driver that its first trailer was emitting
visible amounts of
smoke
(R.
169,
292,
338).
Thereafter,
the State Police who arrived at this site
where the carrier had been stopped observed vapors billowing
to
a height of 20 feet from the front end of the first trailer
which spread in an easterly direction over the railroad tracks
adjoining 1-55 US-66 and toward nearby farm houses
(R.
174,
293,
338).
Not knowing the precise nature of the emissions
the State Police concluded from the bills of lading that the
dischargesmight possibly be bromine
CR.
300,
346).
At approxi-
mately 3:00 a.m., Officer Veronda of the State Police, ordered
that 1-55 US-66 be closed to traffic in the north and southbond
lanes and notified the railroad to discontinue rail traffic on
the line adjoining this highway
CR.
299—301).
At 4:00 a.m.,
Officer Veronda ordered Trooper Cofield to evacuate farm houses
and all others in the direction that the fumes were heading.
Following this order, Officer Cofield evacuated farm houses in
the vicinity of the occurrence as the wind shifted toward Dwight
CR.
339-41).
At
6:00 a.m., Officer Cofield ordered the evacuation
of east edge of Dwight.
Thereafter,
the record discloses that
the entire City of Dwight was evacuated including the Fox Valley
Developmental Center for severely handicapped children by 7:17
a.m.
(P.
382) and the Continental Manor nursing home by approxi-
mately 11:00 a.m.
(R.
459).
Testimony from a number of occurrence
witnesses indicated that traffic was resumed on 1-55 US-66 at
10:10 a.m. after the trailer was removed to an isolated area
CR.
307);
that fumes from the trailer subsided around 1:00 p.m. per-
mitting patients from the nursing home to return at 1:00 p.m.
(R.
461); and by 3:00 p.m.
all the handicapped children had re-
turned to the center
(R.
386).
31—563
—12—
While
no
personal
injuries
were
reported
from
patients
or
staff
of
the
handicapped
center
or
the nursing home as
a
direct
result
of
this
evacuation
CR.
338-461),
two
firemen
at
the
scene
of
the
occurrence
were
overcome
by
the
fumes.
The
record
discloses
that
while
in
performance
of
their
duties
as
firemen,
James
McWilliams
and
Philip
Becker
were
affected
by the fumes
(P..
416,
447).
Both
men
were
treated
at
the
hospital
and
released
within
one
hour
(fl.
413,
445—6).
Other
witnesses in and around the scene of this occurrence stated
that breathing was restricted or difficult and burning nostrils
was experienced from inhaling of the fumes
CR.
335,
342).
From
a distance, those who were evacuated in Dwight claim that the
air
had
a
heavy
odor
or
stench
(R.
384-5)
or
a
pungent
odor
(R.
461).
However, other witnesses experienced no immediate
reaction at the scene of the occurrence
(R.
359)•
Consolidated’s
witness, Mr. Monroe, had no shortness of breath
(R.
689).
While Consolidated does not deny that emissions were
released from its trailer on the date of the occuri.ence,
Respondent takes exception to the characterization and con-
clusion,
in the absence of chemical analysis, that the fumes
were bromine emissions.
Evidence from the record indicates
that fumes were emitted from the front end of the first trailer
where the 200 cases of bromine were stored
CR.
338,
590).
An
occurrence witness stated that liquid bromine had seeped out
of the glass and cardboard containers onto the floor and other
lading in the trailer
(R.
196).
According to competent chemical
testimony in the record, bromine in the presence of cardboard
will produce sufficient heat
(temperature elevations to 188°C
(244°F))to generate bromine fumes
(R.
621,
648).
With evidence
of this temperature potential in 200 cases of 40 ounce bromine
bottles there can be little doubt that vapors discharged from
Consolidated’s front trailer contained bromine fumes from this
shipment which proved toxic
to those overcome by the fumes.
The next question to he determined by the Board is whether
the bromine emissions constitute a violation of the Act.
As
previously stated,
the Complainants alleged that Respondent
Consolidated caused or allowed air pollution in violation of
Section 9(a)
as defined by the 3(b)
and 3(d)
Sections of the
Act.
Section 9(a)
of the Act states
in pertinent part:
“No person shall cause or threaten or allow
the discharge or emission of any contaminant
into the environment
...
so as to cause air
pollution in Illinois either alone or in com-
bination
with
contaminants
from
other
sources.”
31—564
—13—
Section
3(b)
defines
air
pollution
as:
“(T)he
presence
in
the
atmosphere
of
one
or
more
contaminants
in
sufficient
quantities
and
of
such
characteristics
and
duration
as
to
he
injurious
to
human,
plant,
or
animal
life,
to
health,
or to property or to unreasonably
interfere
with
the
enjoyment
of
life
or
property.”
Section 3(d) defines contaminant as:
“(A)ny solid, liquid, or gaseous matter any
odor,
or
any
form
of
energy,
from
whatever
source.”
It
is
clear
from
the
record
that
Respondent
Consolidated
violated the air pollution provisions as contemplated by the
definitions of this Act.
By allowing uncontrolled discharges
of bromine into the ambient atmosphere surrounding this
occurrence, the aerosol contaminants were of sufficient concen-
tration and duration so as to injure those who were in direct
contact with the fumes and to create circumstances which pre-
cipitated the evacuation of Dwight and the temporary closure
of 1-55
-
US highway 66 and temporarily discontinuing service
along the adjoining railroad.
Respondent contends that it cannot be held in violation
of the statutory language “cause or allow”
(Section 9(a))
of
the Act unless there
is a showing that it failed to act under
a duty or undertook some activity which directly contributed
to the cause of the violation
(Resp.
Brief 22).
In addition,
Consolidated supported this contention with defenses that it
was free from arty wrongdoing and that latent defects in packing
and packaging materials caused this occurrence
(Resp. Brief
8-21).
The Board will remind Respondent Consolidated that
liability for violation of the Act or Rules does not depend on
affirmative proof of negligence.
The Act simply makes it
illegal to cause
or allow pollution or to exceed standards set
by the regulations.
Chicago, Milwaukee,
St. Paul,
and Pacific
Railroad, PCB 71-254,
4 PCB 697.
Most recently the Board found
that a violation of the Act does not demand proof of guilty
knowledge; only that Respondent caused, threatened, or allowed
the violation of the Act.’
Chicago and Northwestern Transporta—
tion Company, PCB 76-155
(June
8,
1978).
A common dictionary
definition of the word cause is “one who or that which acts,
happens or exists in such a way as that some specific thing
happens
as
a
result;
the
producer
of
an
effect.”
In
this
case,
the
facts
are
evident
that
Respondent’s
activities
as
carrier
of this bromine shipment caused violations of the Act notwith-
standing a showing of mens rea or a duty to act.
Meadowlark
Farms,
Inc.,
17 Ill.App.3d 851
(1974); Bath Incorporated,
10
Ill.App.3d,
507, 294
(1973).
31—565
—14—
Before
considering
the
penalty
provisions
of
the
Act,
the
Board
will
review
Respondent’s
case
for
factors
in
mitiga-
tion.
In
testimony
concerning
conditions
prior
to
the
occurrence,
Complainants’
and
Respondent’s
witnesses
showed
that
the
200
cases
of
bromine
were
in
good
condition
when
accepted and loaded onto Trailer 29—5794 at its Memphis Terminal
and
when
it
left
the
St.
Louis
Terminal
for
Chicago
on
April
11,
1976
CR.
136,
169,
176,
279,
570,
574,
581).
Under
Interstate
Commerce Commission rules Consolidated claimed that it was
obligated to accept and transport goods which showed no inci-
dence of damage
CR.
576—80).
The record also indicates no evidence of any wrongdoing
on the part of the driver to Chicago.
During the trip, Ed
Nerriman reported that he stopped before all railroad crossings
and he checked his equipment on two different occasions during
the trip
CR.
175,
177).
When stopped by the policeman north
of Dwight,
Illinois, the driver noticed that there was no evi-
dence of tampering with the contents of this shipment; the
seals on the hatches of both trailers were locked
CR.
180).
While the
record
does
not
disclose
what
precisely
caused
the liquid bromine spill and the resulting toxic fumes, several
theories are advanced.
Complainants’ claim that the uppermost
carton of bromine was allowed to fall while in transit due to
improper loading of the shipment at Respondent’s Memphis
Terminal
(Comp.
l3rief
22).
This theory
is simply not supported
by any evidence in the record.
To the contrary, the testimony
indicated that the shipment was loaded to prevent shifting, and
the front cases were “stair-stepped”
to prevent the uppermost
cases from falling
CR.
163,
594).
Using the expert testimony
and the experiments of Mr. Stanley Sedivy, Respondent Consolidated
proposed in the record that latent packing and packaging defects
were responsible
for the bromine spill and emissions (Respond.
Brief 13-21).
Since this theory is supported by no competent
evidence in the record, the Board will similarly dismiss Re-
spondent’s conclusions on this matter.
In considering Section 33(c)
factors of the Act, the Board
must weigh the value of this pollution source against the effects
of this pollution on the people injured by the occurrence.
There
is no question of the social and economic value in this tractor—
trailer shipment of goods or the suitability of its location on
the interstate highway.
While we are concerned about the character
and degree of injury and interference of those effected by these
toxic emissions, the Board will not ignore that it is technically
impossible to reduce or eliminate this threat to the environment
when the precise cause of the occurrence cannot he identified.
For this reason,
the Board finds that a fine or a cease and desist
order would not aid in the enforcement of the Act for the violations
of Respondent Consolidated found herein.
31—566
—15—
SOLID
AND
HAZARDOUS WASTE
The
charges
of
solid
and
hazardous
waste
violations
against
Respondent
Consolidated
speak
to
circumstances
which
were under the control of Respondent’s Safety Supervisor,
Benard
Monroe.
After
arriving
at
the
scene,
Monroe,
with
Michael
Bean,
a
hazardous
waste
consultant
from
Buicher
Emergency
Services,
detached
the
rear
trailer
and
drove
the
tractor
and
front
trailer
to
an
isolated
area
on
Scully
Road
off of 1—55
—
US Highway 66
CR.
190, 679).
When firemen
arrived, ventilation holes were cut in the top and side of
the
trailer
so
water
could
be
applied
and
lime
added
to
assist
in
neutralizing
the
bromine
which
had
seeped
onto
the
trailer
floor and the other lading
CR.
196,
199).
After discovering
that
the
contents
in
the
trailer
was
urisalvageable,
the
trailer
was
torn
up
and
turned
on
its
side
CR.
218-20,
232).
The
bromine bottles, broken glass,
freon containers were crushed
and
collected
with
the
bits
of
aluminum
siding,
charred
remnants
of cardboard, and other debris and the residue containing the
bromine component for loading into dump trucks and for disposal
at a landfill facility
CR.
218—223,
232, 233).
In
other
testimony,
Mr.
Monroe
stated
that
he
had
contacted
the EPA Action Center at 4:00 p.m.
CR.
681).
The Agency personnel
~thoadvised Monroe, Charles Clark and Thomas Cavanaugh, testified
that they considered the debris to be hazardous because of the
bromine
component
which
lir~üted disposal
of
the
debris
to
those
sites specially permitted for acceptinç~hazardous wastes
(R.
502,
510,
531-2).
Initially,
Mr. Monroe was given three locations
for the disposal of this debris
(R.
681) but his attempts to
contact the Sheffield, Ocoya, and Brockman sites by phone proved
fruitless on April 12th
CR.
681).
The record shows that Charles
Clark recommended these sites to Monroe
CR.
492-4).
In later
conversations, Thomas Cavanaugh advised Monroe that Sheffield
was the best site;
Ocoya and Brockman were unsuitable
CR.
524,
526).
Charles Clark further testified that he specifically
told Monroe that the material was not to be taken to the Morris
landfill because
its
operation was unsatisfactory
CR.
494)
and
Morris landfill did not have an operating permit
(R.
520).
Monroe,
however, denied that Charles Clark or anyone from the Agency had
warned him against taking the debris to the Morris landfill
CR.
687-88).
Monroe further testified that he did not make a prior
determination whether Morris had a permit to operate its landfill
site or to accept hazardous wastes
CR. 701).
On page 686 of the transcript, Monroe admitted that on April
13, 1976,
at 3:00 p.m. that trucks carrying the debris from this
occurrence were disposed of at the Morris landfill.
Mr. Monroe
had testified that he needed to dispose of the material on the
trucks because the trucks were costing “us” money
CR.
684).
At
8:00 a.m. that Tuesday morning, Mr. Monroe had finally got into
contact with Sheffield and was told that because equipment was
down the debris could not be disposed until
the following Monday
31—567
—16—
(R.
682).
Mr.
Schoen
of
the
Agency
had
contacted
Sheffield
after Monroe had learned that the equipment might be working
by that Friday
(R.
686).
Under these circumstances, the
debris containing the bromine component was deposited in the
Morris site by trucks under the control of Consolidated
without concern for the permit status of the Morris landfill
site
CR.
520)
Section 21(f)
of the Act states that no person shall
“(D)ispose of any refuse, or transport any refuse into this
State for disposal, except at
a site or facility which meets
the requirements of this Act and of the regulations thereunder.”
In pertinent part,
Rule 202(h) (1)
of Chapter
7:
Solid
Waste Regulations states that,
“no person shall cause or allow
the use or operation of any existing solid waste management
site without an Operating Permit issued by the Agency not
later than one year after the effective date of these Regula-
tions
(July 27, 1973).”
Rule 310(b) requires that “hazardous and liquid wastes
may be accepted at a sanitary landfill only if authorized by
permit.”
Respondent Consolidated contends that Complainants did
not satisfy its burden in establishing violations under Section
21(f) of the Act, since Consolidated was not aware of the Morris
permit problem, and it had made every effort to work with the
Agency in attempting to find an acceptable disposal site.
Con-
solidated also claims that there
is no evidence that neutralized
residue from the occurrence was liquid or hazardous
(Resp.
Brief
28).
As stated above, Section 21(f)
and Rule 202(b) (1)
require
a showing that Consolidated disposed of refuse at a site without
an Operating Permit.
A violation of Rule 310(b)
requires proof
that liquid or hazardous waste was accepted at a site without
a supplemental permit.
In this case, Respondent Consolidated’s
admission of disposing of the debris from this occurrence at
Morris
is corroborated by the testimony of Michael Bean
CR.
222,
224, 648).
Testimony of Agency personnel indicated that the
Morris landfill was not permitted to accept solid waste on or
before April 13,
1978, when the debris was deposited at Morris.
This evidence alone is sufficient to show violations of Section
21(f)
of the Act and Rule 202(h) (1) of Chapter
7.
Respondent’s other arguments concerning its good-faith
attempts to find an acceptable site landfill for its hazardous
waste and its failure to discover the permit status of the
Morris landfill site are not competent defenses and do not
relieve Consolidated of its responsibility under these provision
of the Act or the Rules.
31—568
To satisfy the liquid or the hazardous waste burdens of
Rule
310(b)
of
Chapter
7
against
Respondent
Consolidated,
the
Complainants
must
show,
apart
from
proof
that
the
waste
was
deposited
without
the
requisite
supplemental
permit,
that
some
physical
or
chemical
quality
of
the
waste
made
it
diff i-
cult
to
manage
except
by
supplemental
or
extraordinary
measures,
or that a particular component,
a combination of components or
a
product
thereof
would
pose
a
danger
to
public
health
if
the
hazardous
component
were
released
to
the
environment..
It
is
apparent in the record that
the
residue
from
this
occurrence
contained a bromine component, but there is no evidence which
indicates that the physical or chemical characteristics or
concentration of the bromine or any component in the residue
caused
the
waste
to
be
hazardous
or
that
the
consistency
of
the residue required special handling for it to be properly
deposited at the Morris landfill.
The record indicates that
representatives of the Complainants were present throughout
the occurrence.
Yet, Complainants have failed to present
any evidence indicating that the waste or any of its components
were hazardous; nor did the Complainants provide any competent
evidence concerning the properties or characteristics of any
component in the residue which would prove dangerous to the
environment or public health.
It is not the proper function of the Board to supply
technical facts which are deficient in the record.
While the
Board has expertise in diverse areas, our determination must
be based upon evidence presented in a hearing at which all
interested parties were given an opportunity to cross—examine
the testimony of expert witnesses and to offer evidence to the
contrary.
Smith v. Department of Registration
& Education,
412 Ill.
332
(1952); Farney v
Anderson,
56 Ill.App.3d
677
(1978);
Craig v. Pollution Control Board,
376 N.E.2d 1021
(1978).
The
Board will hereby dismiss the allegation against Respondent
Consolidated concerning Rule 310(b)
of Chapter
7.
In making a determination in this part, the Board will
consider the Section 33(c)
factors in reference to this record.
There
is no doubt that the resulting debris was part of a
lading which had social and economic value before this occurrence
when in route to Chicago on 1-55
-
US Highway 66.
However, the
disposal requirements of debris at a properly permitted landfill
site is considered to be within the technical feasibility of any
person within this State.
While Complainants failed to prove
that the waste contained any hazardous components, the existence
of the bromine component is evident in the re&idue, which according
to this record should have been disposed with the other debris
in a properly permitted landfill site.
The unfortunate circum-
stances and defenses claimed by Respondent Consolidated do not
relieve this Respondent of the obligations under the Act and
Rules which require proper disposal to avert an incalculable
threat to public health and the environment.
It
is the decision
3i—569
—18—
of
the
Board
to
assess
a
penalty
of
$1,500.00
upon
Respondent
Consolidated
for
violations
found
in
this
part.
MOTION TO DISMISS BY CONSOLIDATED
On
September
13,
1977,
Respondent
Consolidated
filed
a
Motion
to
Dismiss
which
supplemented
the
same motions made
during
the
hearing
(R.
147-49,
555,
738).
Respondent
claims
that
not
unlike
Michigan
Chemical,
Red
Ball
and
Hulcher,
pre-
hearing discovery was insufficient to show any liability on
part of Consolidated.
In addition, Respondent contends that
it
was
denied
full
and
fair
hearing
because
it
was
not
aware
of the “secret” stipulations, the agreements, or the testimony
from Mr. Bean of Hulcher, from Mr. Shankle of Michigan Chemical,
or the affidavit
from
Mr.
Wallace
of
Red
Ball
that
which
were
all planned before the parties were dismissed.
Respondent also
claims that Complainants exceeded prosecutorial discretion.
Since there
is no basis for these claims
in evidence, the
Board is not persuaded by these arguments to overturn its
present
findings.
Respondent’s
Motions
to
Dismiss
are
hereby
denied.
MOTION FOR COSTS
On August
17,
1977, Complainants
filed a Motion pursuant
to Procedural Rules
314(e)
and 701(b)
to pay the reasonable
costs to Complainants for proving certain facts at the hearing
in this case.
Consolidated responded in opposition to this
Motion on August 24,
1977.
Complainants claimed that in reply to their Request for
Admissions of Fact dated February 25,
1977, Consolidated filed
a Response dated March 17,
1977,
containing a sworn denial of
Pequest Nos.
7,
8,
15,
16,
17,
18, 19,
20, 21,
22,
26,
27,
29,
and
32
which
Complainants
contend
were
subsequently
proven
during
the hearing at an expense of $407.24 including the charge of
$200.00
for
five
hours
of
attorney’s
time.
The Board finds insufficient evidence in the pleadings
or in the record to warrant imposition of costs.
After re-
viewing the texts of Complainants’ requests, the Board notes
that certain denials reflected legitimate facts at issue in
this
case
and
that
certain
statements
were
not
fully
proven
in
Complainants’
case—in-chief.
Other statements were poorly con-
structed, requested two admissions in one statement and required
that responding party accept conclusionary phrases in the state-
ment
(Request Nos.
15,
16,
17,
18, 19,
20,
21, 22).
Complainants
Motion
for
Costs
is
hereby
dismissed.
31—570
—19—
This
Opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions
of
law
in
this
matter.
ORDER
Respondent,
Consolidated
Freightways
Corporation
of
Delaware,
is
found
to
have
caused
or
allowed
emissions
of
bromine contaminants
into the environment so as to cause
air pollution in violation of Section 9(a) of the Environ-
mental Protection Act.
No penalty will
he
assessed for this
violationof
the
Act.
Respondent, Consolidated Freightways Corporation of
Delaware,
is
found
to
have
caused
or
allowed
the
acceptance
of hazardous wastes at the Morris landfill
site without an
operating permit in violation of Section 21(f)
of the
Environmental Protection Act
and
Rule
202(b)
of
Chapter
7:
Solid
Waste
Regulations.
The
Board
will
assess
a
penalty
of $1,500.00 for violations found herein; penalty payment
by certified check or money order payable to the State of
Illinois shall he made not later than 35 days of the date
of this Order to:
Fiscal Services Division, Illinois En-
vironmental Protection Agency,
2200 Churchill Road, Spring-
field, Illinois,
62706.
The allegation against Respondent Consolidated Freightways
Corporation of Delaware pertaining to violations of Rule 310(h)
of Chapter
7:
Solid Waste Regulations
is hereby dismissed.
Respondents, Michigan Chemical Corporation, Red Ball
Motor Freight,
Inc., and Huicher Emergency Service,
Inc.,
are
dismissed as parties to this action.
Respondent, City of Morris, Illinois,
is found to have
violated the permit requirements of Section 21(e) of the
Environmental Protection Act and Rule 202(b) (1)
of Chapter
7:
Solid Waste Regulations.
The Board will assess a penalty of
$750.00 for violations found herein; penalty payment by certi-
fied check or money order payable to the State of Illinois
shall
he
made
not
later
than
35
days
of
the
date
of
this
Order
to:
Fiscal Services Division, Illinois Environmental Protection
Agency, 2200 Churchill Road,
Springfield,
Illinois,
62706.
The allegations against Respondent, City of Morris,
Illinois,
pertaining
to
violations
of
Rule
310(b)
of
Chapter
7:
Solid
Waste Regulations and Section 21(b) of the Act are hereby dis-
missed.
Respondent,
Albert
Pfaff
d/b/a
Pfaff
Construction,
is
found
to have accepted hazardous or liquid wastes
in violation of Section
21(b)
and
Rule
310(b)
of
Chapter
7:
Solid
Waste
Regulations.
The
31—571
—20—
Board
will
assess
a
penalty
of
$750.00
for
violations
found
herein; penalty payment by certified check or money order
payable
to
the
State
of
Illinois
shall
be
made
not
later
than
35
days
of
the
date
of
this
Order
to:
Fiscal
Services
Division,
Illinois
Environmental
Protection
Agency,
2200
Churchill
Road,
Springfield,
Illinois,
62706.
The allegations against Respondent, Albert Pfaff d/b/a
Pfaff Construction, pertaining to violations of Rule 202(b) (1)
of Chapter 7:
Solid Waste Regulations and Section 21(e) of
the Act are hereby dismissed.
IT IS SO ORDERED.
Mr. Nels Werner dissented.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board,
herfliy
certify
th~ above
Opinion
and
Order
were
adopted
on
the
‘4~’
day of
~
,
1978
by
a
vote
of
41—I
*
A~-~’~~)
o~~:
Christan
L.
Moff’e~j~)
Clerk
Illinois
Pollution
Control
Board
31—572
