ILLINOIS POLLUTION CONTROL BOARD
April 14, 1977
JOSEPH T. ENDERS,
Complainant,
v.
)
PCB 75—283
VILLAGE OF GLENDALE HEIGHTS,
Respondent.
Mr. Joseph
T. Enders, Complainant, appeared pro Se;
Messrs.
Theodore E.
Cornell III and Kenneth J. Gumbiner, Attorneys,
appeared for the Respondent.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
This matter was initiated by the filing of a formal Complaint
by Complainant Joseph T.
Enders
(Mr. Enders)
on July 24,
1975.
That
Complaint,
along with supporting letters from private citizens,
alleged that Respondent Village of Glendale Heights
(Glendale Heights)
had violated Section 9(a) of the Environmental Protection Act
(Act)
and this Board’s Order in a previous case,
in the operation of
a
sewage treatment plant
(STP),
throughout
a period beginning
in 1972
and ending with the filing of the Complaint.
Ill.
Rev.
Stat.,
Ch.
111—1/2, §l009(a)(1976).
Enders
v. Glendale Heights, PCE 72-252,
5 PCB 683
(1972).
Section 9(a)
of the Act contains the statutory
prohibition of air pollution; the previous case,
PCB 72-252,
entailed
a finding of violation of Section
9(a) by the Village of Glendale
Heights, and specific Orders with regard to the abatement of that
odor viohition.
See
also,
EPA v. Glendale Jieiqht~,
PCR
70-8,
1 PCB
217
(1971)
On August
7,
1975,
the Board entered an Interim Order which
consolidated this matter with a then—pending Variance case, G1enda~
Heights v.
EPA, PCB 75—180
(November
6, 1975).
That Interim Order
also struck from the Complaint the alleged violation of our earlier
Order in PCB 72-252,
supra, noting that,
“The proper forum to compel
compliance with prior Board Orders is.
.
.the Circuit Court..
.“
Two additional Interim Orders were entered on August 28,
1975.
The first of those Orders severed the instant case from PCB75-180,
supra,
the Variance case;
the second denied a Motion to Strike and
Dismiss filed by Respondent.
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Again on September 18,
1975, two Interim Orders were entered:
The first denied Complainant Enders’ Motion for Reconsideration of
our August
28, 1975 Interim Order separating the Enforcement and
Variance cases;
the second decided a Motion for Interlocutory Appeal
brought by Respondent from certain rulings of the Bearing Officer.
~ further Interim Order, entered November 26, 1975, denied a
motion appealing additional orders of the Hearing Officer, and
upheld his decisions.
Additional
Interim Orders entered January
8
and February 11, 1976, granted Leave to File an Interlocutory Appeal,
arid again upheld certain actions of the Hearing Officer, respectively.
Public hearings were held in this case on the following dates:
December
6,
1975; March
5, April
3, April 10, and April
27,
1976.
The record
in this matter is extensive, containing
(in addition to
the 1,253 pages of transcript of those hearings)
a considerable
quantity of documentary exhibits.
A number of citizens appeared
for both Complainant and Respondent,
and both sides attempted
to
introduce technical and scientific evidence through expert and lay
witnesses.
Following the close of the hearings,
several motions were made
by
both parties, which were explicitly
left by the Hearing Officer
for Board decision.
The Board has determined that action on the
following motions
is necessary or helpful, and takes the action
indicated:
Complainant’s Request to Enter Document,
filed
May
4,
1976,
is denied.
Complainant’s Motion to Correct Record,
filed
July
7,
1976,
is granted.
Complainant’s Motion to Reconsider Hearing
Officer’s Ruling, filed July
7, 1976,
is denied.
Complainant’s Motion for Reconsideration,
filed
Au;ust
18,
1976,
is denied.
Complainant’s Motion to Exclude Respondent’s
Brief
from the Record, filed August 18,
1976,
is denied.
Complainant’s Motion to Exclude the Hearing
Officer’s letter
(concerning witness credibility),
filed August 19,
1976,
is denied.
Any remaining motions are determined
to be moot
(e.g., Motion for
Ruling of August 20, 1976), or immaterial,
in light of our findings
herein on the merits of the case.
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The essence of this case consists of the following
two allegations
by Mr.
Enders:
1.
Operations at the Glendale Heights STP have
caused noxious odors over the last several years,
resulting
in
serious, widespread interference with
the
enjoyment
of life and property of those individuals
residing
in the area surrounding the STP.
2.
Operation of the Glendale Heights STP has
caused, and continues to cause,
the emission of
aerosols containing pathogenic viruses and bacteria,
resulting
in
a health hazard for the surrounding
residents,
as well as to children attending a school
located immediately adjacent to the plant.
The relief sought by Mr. Enders is
a requirement that Glendale
Heights cover the STP’s treatment tanks and scrub the off—gases.
Complainant’s burden with regard to an odor allegation has
been previously stated by the Board:
1.
Was there in fact an odor?
2.
Was that odor caused by Respondent’s STP?
3.
Did that odor result in interference with the lives,
environment, enjoyment of property, etc.,
of the
citizens affected?
4.
Was
such interference unreasonable, such unreasonable-
ness being measured, in part, by the criteria in §33(c)
of the Act.
People v. North Shore Sanitary District,
PCB 74—223,
74—229
(Consol.),
19 PCB 192
(1975).
See,
City of Nonmouth v. PCB,
57 Ill.2d
482, 313 N.E.2d 161,
i~3 (1974); Mystik Tape v.
PCB,
60 Ill.2d 330
(1975);
Processing
arid
Books, Inc. v.PCB,
64 Il1.2d
68 351 N.E.2d,
86~ (1976).
We determine that the burden with regard
to Complainant’s
allegation of dangerous bacterial and viral aerosol emissions is
essentially the
same as that for odor,
supra.
Complainant must
show the existence and nature of the aerosol emissions, and that
such emissions do in
fact pose a serious potential threat to the
health of those
affected.
However, absent an actual showing of
adverse health effects,
the potential for or probability of such
effects must be demonstrated by acceptable scientific evidence.
See,
e.g., Draper and Kramer,
Inc.
v.
PCB,
40 I1l.App.3d
918,
353 M.E.2d 106, 109
(1976)
Turning
to the merits of the case,
we shall discuss first the
alleged aerosol emissions.
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Complainant’s case on the existence of possibly
or potentially
harmful aerosol emissions is based largely on the testimony of
Dr. Hutton
D.
Slade,
a professor of microbiology at Northwestern
University.
The principal documentary basis for the allegation
is a report prepared by Dr. Slade for the City of Des Plaines
concerning possible health aspects of sewage treatment plant
operations,
(Complainant’s EX.
1,
R.
147).
It is Complainant’s
and Dr. Slade’s contention that that report
--
constituting a
summary of scientific literature on the spread of bacterial and
viral infections from sewage treatment plants
--
would apply to
operations at the Glendale Heights STP,
(R. 151).
It
is claimed
that aerosols are generated in sizes that are capable of entering
the smallest portions of the lungs, and that these minute droplets
are likely to contain the same pathogenic microorganisms present
in STP influents,
(e.g.,
R.
199—202, 236—238,
247,
301—303)
Dr. Slade’s testimony is simply insufficient, by itself, to
support any finding that the operation of the Glendale Heights STP
does,
in fact, pose any real, potential,
or possible health hazard.
The witness was unclear as to whether the alleged hazard would be
“possible” or
“potential,”
(e.g.,
R.
156-157).
No independent
research was done for the report,
(id.).
Although the witness
stated at one point that his report stands for the fact that there
are adverse effects from sewage treatment plants generally,
(R.
156),
T~~jj~
statement was repudiated at a subsequent hearing,
(IL
293).
In
addition, Dr.
Slade’s testimony was directly contradicted
by
an
equally credible witness for the Respondent,
(e.g,
R.
994-1000).
Complainant’s documentary offerings are of no greater use.
It
is clear from testimony that there are widely differing views in the
scientific community on the subject of possible aerosol hazards,
(e.g.,
R.
207, 183,
280,
333,
1000).
Even if the Board were to
accept completely all of the documentary evidence offered by
Respondent, sufficient questions would remain to preclude any
finding of violation under §9(a)
of the Act.
However, many of the
documentary exhibits offered by Complainant could not be admitted
--
on any of several grounds.
Even if the test for
a finding of violation under
§9(a) with
regard to aerosol emissions were relaxed,
the record would be
insufficient to support a finding of violation. The inconclusiveness
of the scientific testimony is accompanied by a complete failure
of the Complainant to demonstrate any actual, physical harm caused
by the STP.
In
fact, the testimony received
in this regard was to
the contrary,
(e.g.,
R.
1124).
Although Mr. Enders attempted to
show that either the odor or the aerosol problems may have caused
illness in one case,
(e.g.,
IL
66,
226), that testimony concerned
an individual already terminally ill with cancer.
No conclusive or substantive finding of violation with regard
to the alleged aerosol hazard can be found.
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—5-.
Turning next to the large body of testimony with regard to the
alleged odor violations, we must reach the same conclusion.
The
record contains extensive testimony on the presence or lack of odors.
It also contains extensive testimony as to the presence or absence
of improper operating methods or other
conditions likely to cause
odors.
That evidence
is inconclusive, although it does raise the
possibility that an odor may have existed during the period covered
by the Complaint.
The testimony brought to show the existence of an odor,
as well
as the alleged unreasonable interference caused by that odor,
is
directly contradicted by equivalent contrary evidence brought by
Respondent.
While many of the Complainant’s witnesses alleged that
a foul and noxious odor forced them to remain indoors or install
air—conditioning
(e.g.,
R.
82, 111,
118,
129,
370,
432,
473),
Respondent’s witnesses testified that they have detected no odor,
or at least no objectionable odor, during the period covered by the
Complaint,
(e.g.,
R.
564,
643,
666,
688,
1134,
1158).
In addition,
at least two of Complainant’s witnesses equivocated on either the
nature or the effect of the alleged odor,
(e.g.,
R.
46, 73).
Standing
alone, the testimony is inconclusive.
There are two additional factors which support our decision
that the testimony is not sufficient to support a §9(a)
violation.
First,
the Hearing Officer’s opinion as to credibility, filed on
May
3,
1976,
states:
In my opinion, Complainant Joseph
T. Enders’
testimony concerning the extent
to which the
odors from the plant interfered with his enjoy-
ment of his property was not credible.
I also do not accept the testimony of his other
witnesses concerning the degree to which the
odors interfered with or prevented the use of
their property.
Although Complainant sought
(Motion of August
19,
1976)
to
have the Hearing Officer’s letter stricken as improper under the
Procedural Rules, we have denied that Motion,
supra.
Although the
final paragraph of the Hearing Officer’s letter does approach the
Board’s function rather than the Hearing Officer’s,
there
is no
deficiency here to require that the mandatory findings as to credi-
bility be stricken.
Careful reading of the record indicates that
the Hearing Officer made every possible attempt to allow Complainant
and his witnesses to show the existence, extent, and effects of
the alleged odors.
The Hearing Officer allowed such latitude, and
went to such lengths
to protect Complainant’s case, that we can
find no trace of any hostility towards the Complainant or his case.
We accept the Hearing Officer’s statement as to credibility.
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Secondly, the testimony presented by Complainant seems questionable
in light of cross-examination of Complainant himself at the fourth
hearing.
It seems quite possible from Mr. Enders’ responses to
cross-examination that many of the surrounding residents’
objections
to the Glendale Heights STP may have been initiated by the Complainant
himself.
Complainant’s case with regard to the existence of operational
and maintenance practices at the STP which could lead to the existence
of noxious odors, may be disposed of summarily.
Complainant failed
to show the existence or any regular or continuing practices at the
plant,
since 1972, which would lead to the existence of the regularly-
occurring odors complained of by him and his witnesses,
(e.g.,
R.
589—624).
In summary, the evidence shows clearly that an odor did exist
prior to 1972
--
a period not covered by the Complaint in this case.
That odor was the subject of a prior case, and need not be discussed
again here.
See, PCB 72-252,
PCB 70—8, supra.
In addition, the
evidence shows that there may occasionally be some mild odor in the
area of the STP.
Testimony presented by both sides,
including some~
admissions by Respondent,
(e.g.,
R.
394), indicates that there may
have been conditions which may have led to odors.
Expert testimony by a representative of the Environmental
Protection Agency,
(R.
730,
811), indicated that a well-run STP is
unlikely to cause noxious odors
(although all STPs may have some
mild odor);
Glendale Heights being one of the five best-run of 200
STP’s
in the state, no serious odor problem is to be expected.
Although the record indicates that Glendale Heights has continued
to improve procedures for monitoring plant operations,
(e.g.
the
installation of a new alarm and surveillance system,
(R.
617,
597),
the responsibility rests with Glendale Heights to insure the proper
and efficient operation of the sewage treatment plant.
Complainant having failed to meet his burden of proof, as set
out above, the Complaint must be dismissed.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that the
Complaint in the instant matter be dismissed.
Mr. Jacob
D. Dumelle concurs.
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—7—
I, Christan L. Noffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order were
adopted on the /4~~’day of ~
,
1977, by a vote of ,à~:tD
Illinois Pollution
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