ILLINOIS POLLUTION CONTROL BOARD
November
6,
1975
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
v.
NORTH SHORE SANITARY DISTRICT,
)
a Municipal Corporation,
)
Respondent.
PCB 74—223
PCB 74—229
CITY OF HIGHLAND PARK,
)
(Consolidated)
Complainant,
v.
NORTH SHORE SANITARY DISTRICT,
Respondent.
Mr. Marvin
I. Medintz and Mr. Dennis
R. Fields,
Assistant
Attorneys General, appeared on behalf of the People;
Mr. Richard M.
Hollander,
Mr. Richard M. Kates, and
Mr.
Berle
L. Schwartz, appeared on behalf of the City of
Highland Park.
Mr. Murray
R. Conzelman,
Conzelman,
Schultz, O’Meara and
Snarski, appeared on behalf of the North Shore Sanitary District.
OPINION AND ORDER OF THE BOARD
(by Mr.
Zeitlin):
Case No. PCB 74-223 was filed by the People of the State
of Illinois on June
14,
1974, charging Respondent North Shore
Sanitary District,
(NSSD), with violation of Section
9(a) of
the Environmental Protection Act,
(Act), from January
1,
1974
until the filing of the Complaint.
Ill.Rev.Stat.,Ch.lll—l/2,
§1009 (a) (1973).
Case No. PCB 74-229 was filed by the City of Highland
Park
(Highland Park),
on June
17,
1974,
charging NSSD with
a general violation characterized as
“AIR-ODOR”
on June
1,
1974.
A Motion
to Consolidate the two cases was filed by the Attorney
General on June 26,
1974,
and the Pollution Control Board
consolidated the two causes in an Order dated June
27,
1974.
19
—
192
—2--
An Amended Complaint was subsequently filed by the City
of Highland Park on July 10,
1974,
to expand the number of
dates of alleged violation to include June
1,
16,
17,
21 and
28,
1974,
and July 4 and
5,
1974.
Also during the initial
pleadings period, the Board on June 27, 1974 denied NSSD’s
Motion to Dismiss.
Hearings were held in Highland Park on
September 13,
1974, November
1,
1974, December 10,
1974, and
January 10,
1975.
These consolidated cases concern alleged odor violations
at the NSSD Clavey Road Sewage Treatment Plant, located in
the City of Highland Park.
For a more complete description
of the location and function of the Clavey Road Plant, the
reader is referred to the Board’s prior Opinion and Order in
PCB 70-7,
12,
13, 14, decided on March 31, 1971.
PRELIMINARY ISSUES
In this case the issue of conformity of the pleadings
to the proofs elicited at hearing presents somewhat of a
problem.
In summary, the following dates were alleged as
those of violation:
DATE(S)
OF
WHERE FIRST ALLEGED OR FIRST
ALLEGED VIOLATION(S)
PUT IN AT HEARING
Jan.
1,’74 to June l4,’74
People’s Complaint of
(inclusive)
June
14,
1974
April 16,
1974
R.9
April
20,
1974
R.10
April
24,
1974
R.30
April
25, 1974
R.109,134
April
26,
1974
R.l09,129
June
1, 1974
City’s Complaint of
June 17,
1974
June 11, 1974
R.130
June 16,
1974
City’s Amended Complaint of
July 10, 1974
19—
193
—3—
June 17, 1974
June 18,
1974
R.11
June 19,
1974
R.34
June 20, 1974
City’s Ex.3, p.14
June 21, 1974
Amended Complaint
June 23,
1974
R.24
June 24,
1974
City’s Ex.3,4.
June 27,
1974
R.lll
June 28, 1974
Amended Complaint
“mid—June,
1974”
R..135
July
4,
1974
Amended Complaint
July
5,
1974
id.
August
15, 1974
R.95
These are dates for which some showing of odor violation
has been attempted
in testimony or submission of Exhibits.
Several of these dates are not covered in any of the three
Complaints.
While discussions among counsel at the hearings
indicated testimony regarding several of these dates cannot
be seen as surprising to NSSD,
we nonetheless must concur
with Respondent that no foundation was laid in the pleadings
for some of the testimony regarding alleged violations in
June.
19
—
194
—4—
However, agreeing that there may have been surprise
at the time of the first hearing
in September,
1974,
does
not lead to a further agreement that the evidence introduced
with regard to dates not covered in the complaints must be
dismissed.
First, the charges in an administrative proceeding
need not be formulated with the precision required in a court.
Joyce
v. City of Chicago,
216 111.466, 75N.E.l84(l905);
Schyman
v. Department of Registration and Education,
9111.App..2d 504, 133N.E.2d 551
(1956).
Second, wh~rethe
continuation of an administrative proceeding gives Respondent
a full and adequate opportunity to respond to matters raised
at hearing, or to recall and cross—examine witnesses at its
leisure, there has been no fundamental unfairness or denial
of due process.
1 Davis, Administrative Law 526
-
533.
In
this case,
the “surprise” claimed by Respondent occurred at
the hearing of September
13,
1974; the final hearing in the
matter was held on January 10,
1975.
Respondent had over
four months
in which to rebutt any matters raised at the
September hearing, and
in fact did so, partially,
in its
Exhibits
2 through 14.
The Hearing Officer was correct in
allowing the Complainants
to enter the evidence regarding
alleged violations on June 18,
19,
20,
23,
24,
and
27,
1974.
In keeping with Board Procedural Rule 328, and based on the
actions of the parties, we find that the pleadings are here
properly conformed to the proof.
In another preliminary matter,
counsel for Respondent
objected to the introduction of
a considerable number of
testimonial statements by citizens and to the introduction
of certain citizen exhibits.
Turning first to the statements
of citizens, we find that there was no error by the Hearing
Officer in allowing the various matters testified to
by the citizens, even though many of the citizen statements
were not relevant or competent for our consideration of the
violations alleged.
It is the intent of the Board to bring
together at hearing all of the relevant facts on an individual
matter, within limits dictated by reason and the limits of
time at individual hearings.
Some matters must later be
disregarded,
(eg., R.72).
Others, even where not of use
in determining the existance of a specific violation, may
nonetheless be of assistance to the Board in fashioning
an appropriate remedy.
19
—
195
—5—
Respondent also objected strongly to the introduction
of a “health survey” compiled by a group of citizens,
(Citizens
Ex.1-5).
The study attempted to show that the incidence of
disease, particularly eye disease,
is much higher in areas
near the Clavey Road Plant.
While the study is
interesting,
it is not competent as regards our findings in this case.
We
have not considered the study
in arriving at a decision in
this case, and decline to make any determination as to the
merits of the study.
Counsel for Respondent also objected to the introduction
of City’s Exhibit
2,
a calendar used by one witness to keep
track of alleged dates when she was bothered by odors.
The
Hearing Officer refused to accept the calendar as an exhibit,
but forwarded it to the Board nonetheless.
In a limited
manner, we must overrule the Hearing Officer.
As will be
shown in a later discussion regarding actual dates of alleged
violation,
the calendar’s probity is quite limited, and
actually gives little or no support to Complainants’ cases.
However,
there is nothing in the record to indicate that the
calendar should not have been accepted for whatever limited
worth it might have.
In a final preliminary matter, we must resolve an
objection to the introduction of Respondent’s Ex.1,
a copy
of our Opinion and Order
in a previous case concerning
NSSD’s Clavey Road Plant.
Counsel for both Complainants
apparently fear that Board consideration of the earlier
cases involving Respondent would lead to reversible error,
(R.
155-167; brief for City of Highland Park).
The Board’s
Order in PCB 70—7,
11,
12,
13,
14
(1971) was evidently
introduced by Respondent for two purposes:
a.
Respondent wished to impeach the testimony of one
witness, Mrs. Winston,
based on the Board’s findings and
Order
in the earlier case,
as they related to her.
b.
Respondent,
apparently claiming collateral estoppel,
wished to preempt further Board consideration of the factors
enumerated in
§
33(c)
of the Act.
19—196
—6—
We may indeed take notice of our prior findings, particularly
where the parties are essentially the same, many of the witnesses
are the same,
and the violation alleged is, in part,
the same,
(albeit for different dates).
Respondent has asked expressly
to have the prior cases’
conclusions incorporated into the instant
record.
However,
our findings on the violations alleged in this
case may be based only on facts properly
in the instant record.
But we may,
in fashioning an appropriate remedy, consider whatever
appropriate facts are now before us.
In examining the merits of the instant case, we shall
deal with each date of alleged
violation
chronologically.
The record
in this matter is somewhat complex, and is extremely
disorganized.
The testimony and exhibits regarding the
alleged specific dates of violation are scattered throughout
the record.
In examining each date, Complainant’s burden of
proof to support its allegations for each date
is fourfold:
1.
Was there
in fact an odor?
2.
Was the odor caused by NSSD’s Clavey Road Plant?
3.
Did the odor result in interference with the
lives,
environment, enjoyment of property,
etc., of the
citizens affected?
4.
Was such interference unreasonable, such unreason-
ableness being measured,
in part, by the criteria in
§
33(c)
of the Act?
There
is little question in the record of the first and
third of these points.
The record makes clear the fact that
there was an odor in the area of the Clavey Road Plant,
and
that that odor caused significant interference with the
lives and enjoyment of property of many of the witnesses.
However, the record is not so clear in each case as regards
point two and four, above.
The Complainants introduced a considerable amount of
direct testimony in their attempts
to establish specific
violations.
Stipulated testimony was simply read into
the record.
There were also several important exhibits.
The City of Highland Park and the People introduced a
number of police reports concerning the alleged violations,
which reports showed both the name of the complaining citizen
and the results of investigation by City police officers.
These reports, City’s Ex.3, were quite short and contained
little information.
The City also introduced a group of
internal memoranda of Respondent NSSD’s concerning alleged
odor violations,
(City’s Ex.4).
Respondent introduced its
own log book pages from the Clavey Road Plant,
(Respondent’s
Ex.2—14)
19
—
197
—7—
ALLEGED VIOLATION DATES
April 16,
1974.
The allegation of violation for this
date enters
into the record at R.lO.
In testimony commencing
there, one Joseph Levine stated that an odor of a “foul
latrine” or “rotten eggs”,
(R.lO), prevented him from performing
his normal chores or enjoying his property.
The City’s
Exhibit No.
3, which was not objected to,
shows that police
verification of Mr. Levine’s odor complaint found that the
smell did indeed originate at the NSSD Clavey Road Plant.
(City’s Exhibit
3 also shows four other odor complaints on
the same day, some of which the police were unable to identify.)
Respondent’s Exhibit
2,
the Clavey Road Plant log for
April
16,
1974,
indicates that there was an odor from the
Plant on that date,
as
a result of a “down final
tank”.
Testimony presented by Respondent also indicates that there
was an odor at the Plant on that date,
caused by debris
blocking the collector mechanisms
in “final tank number
four” at the Plant, which then had to be taken out of
service,
(R.
199,
171,
179).
The record contains considerable testimony concerning
the odors from the Ci.avey Road Plant on that date.
There
can be no question that the odor on that date significantly
interfered with the lives and property of many of the
citizens
in the surrounding area.
(See also R.
22,
37—38,
9—95,
and to a limited extent
R.
82 et seq.)
April
20,
1974.
The only actual testimony on this
specific violation is that of Mr.
Levine.
The exhibits
deal with this date in a cursory manner.
Mr. Levine states
only that there was an odor in the area of his home which
forced him inside his house.
The police report for that
date also shows only that there was an odor in the area.
The Plant log for that date,
(Respondent’s Ex.3),
shows some
mechanical difficulty for that date, but makes no mention
of odors.
The record for this date is simply insufficient to
allow any finding of volation.
There is
simply no showing
that any odors which may have interfered with Mr. Levine
were in any way connected to the NSSD Clavey Road Plant.
19—
198
—8—
April
24, 1974.
The testimony regarding violation on
this date is weak, and would not alone support a finding of
violation.
Mrs. Facktor’s testimony regarding a septic
tank/rotten egg odor is insufficiently detailed regarding
this date to connect the odor with the Clavey Road Plant,
(R.30,31).
Similarly, Mrs. Licata’s testimony, even with a
refreshed memory
-
-
her notes of days with strong odors was
later introduced as Complainants Ex.2
—
-
cannot,
alone,
support
a violation for that date,
(R.l08,l09).
However,
Respondent’s Plant log for that date admits violation.
Further, the Plant log for April 24,
1974,
lends credibility
to the multiple hearsay contained in the police reports for
that date,
(City’s Ex.3, p.4).
The corroboration between
the reports of the police department and Respondent adds
weight to the evidentiary value of each, and supports a
finding of violation on that date.
April
25,
1974.
Mrs. Licata’s testimony of alleged
violation on this date cannot,
itself, support a finding of
such violation.
Mrs. Licata’s testimony regarding the
strength and effect of that alleged violation is far too
generalized to support a finding of specific violation.
She noted only that she wrote,
“odor”, on her calendar for
that date,
and that this would indicate a repetition of an
odor that she had smelled is
“always the same”,
(R.109).
After then describing this odor as,
“nauseating,
foul,
obnoxious,
heavy...poorly
kept latrine outhouse smell”,
she states that the smell is intense when her calendar notes
an odor
in caps, with an exclamation point, or with some
other comparative notation.
We are not told whether any
such notation was present on her calendar for April 25,
1974.
However,
stipulated testimony regarding this date is
seen in the record at R.l34,
136 and 137-38.
The stipulated
testimony shows that there was certainly a severe odor in
the area of the Plant, and that it seriously inconvenienced
local citizens.
(See also,
supra, discussion on April
24, 1974.)
19
—
199
—9—
City’s Ex.3, the police reports,
showed fr~urodor
complaints on that date.
Respondent’s Ex.5,
the Plant
log for April
25,
1974,
indicates that the plaht personnel
were able to pin down the source of the odor as the lagoon,
and constitutes a partial admission of violation,
in summary,
the testimony and Exhibits indicate that the odor did originate
at the Clavey Road Plant, and that it did significantly inter-
fere with the enjoyment of life and property on the part of
the local citizens.
April
26,
1974.
The testimony of Mrs. Lieberman
regarding the alleged violation on this date is quite clear,
and easily supports
a finding of actual violation.
Mrs. Lieberman
identified the smell as coming from the Clavey Road Plant, and
that identification was never challenged,
(R.129—132).
On
that date she and a group of guests were forced to abandon
her yard and move indoors as a result of “tremendous odor”,
(R.l30).
The Exhibits again support the finding of violation.
The
police reports,
showing two odor complaints,
indicated that
the police were able to verify a very strong odor, and that
the NSSD was notified.
In the words of the Plant log for that
date,
(Respondent’s Ex.6),
“Aer.
tanks quite ripe, odor around
same very noticable”.
June 1,
1974.
This date was that for which a violation
was alleged in Highland Park’s original Complaint.
The only
evidence of any violation on this date comes from the sti-
pulated testimony of Officer Marchinawski of the Highland
Park Police Department.
However, the stipulated testimony
regarding that date of violation was withdrawn,
(R.l40),
immediately after it was introduced,
(R.139), by Complainant.
Additional evidence regarding an alleged violation
on this date is found in a report by the Po1~ceDepartment
of the City of Highland Park.
That report,
in its entirety,
is as follows:
“June
1,
1974
8:55 PM
-
Mrs.
Roberta Arden,
I52i~flibna,reported an odor
of sewage in the area.
Checked
by Officer McKeever who reported
sewage odor strong
in the area.
Bill Koepsel notified.”
19— 200
—10—
This statement comes into the record as part
o.f
a report
entitled,
“Report of Odors
-
NSSD”, and further stating,
“Below is
a report on Clavey Road odor complaints:”.
Where,
as here, hearsay evidence
is admitted without
objection,
it may be granted its natural probative value.
2 Davis, Administrative Law 289,294.
Here,
the only contrary
evidence
is likewise unsupported hearsay, contained
in
Respondent’s Exhibit
7, constituting its “log book” for the
Clavey Road Plant.
The log for that date shows only the
following entry from the
7 PM to 11 PM shift:
(7—11)
Routine.
BB
operator’s
initials.
Mr. Koepsel came in on odor complaint at
10:00 PM and went with policeman, Officer
McKeever,
to site of complaint.
Could find
no odor.
Both exhibits are weak;
both contain multiple levels of
hearsay; both are reports prepared by the parties and are
certainly subject to preparation as self—serving documents
in contemplation of litigation.
There
is simply not enough here to support a finding
of violation.
Even if we were to give a greater weight
to the police report in this instance,
it is simply not
sufficient to show an odor violation.
A statement that
there is
a “sewage odor strong” in an area, alone, does
not adequately address the issue of the source of the odor.
June 11,
1974.
A finding of violation for this
date
is supported entirely by the testimony of Mrs. Lieberman.
Again, Mrs. Lieberman’s testimony regarding the violation
was identified by her personally as originating at the
Clavey Road Plant, which she had personally visited:
“I
go there all the time”,
(R.l32).
While a portion of
Mrs. Lieberman’s testimony regarding the June 11,
1974
violation is hearsay,
in
which she related the reaction
of 150 persons at an open house,
to the odor,
a finding of
violation is possible from her testimony without the hearsay.
June 16,
1974.
Violation on this date was first
alleged in Highland Park’s Amended Complaint.
In this
instance,
the police report indicated that there was
a
“very faint odor”
in the area of a complaining witness.
Similarly,
a
“faint odor”
is reported
in Res.Ex.8, the
STP log book, and a “very faint odor”
in the City’s
Ex.4,
a copy of a memorandum to Mr.
Koepsel,
NSSD’s
Engineer of Operations,
from J.D.
Styx, Superintendent of
the Clavey Road Plant.
19
—
201
—11—
All of these hearsay exhibits were written following
complaints by a Mrs. Schneider, who lives at 882 Timber Lane
Road in Highland Park, approximately 3,000 ~et
from the STP.
Contrary to the reports cited above for thi~date, Mrs.
Schneider
testified at the September 13,
1974 hearing to a
“terrible
odor”
(R.4l), which was quite strong,
(R.42).
She stated
that the odor was like that of a “soiled diaper,
or a
stuffed-up toilet that was backing up right out in the
street.”
(id).
Even in the aggregate,
this testimony, with the exhibits,
is insufficient to support a finding of violation.
The causal
connection between the testimony of Mrs. Schneider regarding
a strong odor and the Clavey Road treatment plant is simply
lacking.
June 17,
1974.
The alleged violation on this date
is supported by stipulated testimony from a Mr. Howard Zirn,
who in the words of Respondent’s internal communication on
the subject,
lives on the “second or third street west of
our plant.”
(City’s Ex.4, p.2).
The stipulated testimony
for this date indicates that the witness recognized the
smell as that of a sewage treatment plant, and that the
witness felt slightly nauseated as a result of the odor
(R.138).
In addition, City’s Ex.4,
at p.2,
indicates
that the NSSD
felt that an odor could have been caused in that case as a
result of
“our sludge age, which has been carried too long.”
The police report covering that date,
in City’s Ex.3,
is as
follows:
“June 17, 1974
8:12 PM
—
Mr.
Zirn,
366 Pines Circle,
reports sewage odor coming from NSSD Plant
on Clavey Road.
Officer and operator from
plant did notice odor.
Mr. Koepsel contacted.
9:30 PM
-
Mr. Tannebaum,
246 Larkspur, reported
sewage smell on Larkspur.
Mr. Koepsel notified.”
Again, the police report indicates that this “is a report
on Clavey Road odor complaints”.
Respondent’s Ex.9, the
log sheet for Clavey Road Plant for that day states,
“some
odor present SE Wind very low overhead...”
It is clear that
this evidence does,
in the aggregate,
support a finding that
there was an odor violation caused by the Clavey Road Plant.
19
—
202
—12—
June 18,
1974.
The first allegation of violation on
this date also appeared in the testimony of Mr. Levine,
at R.ll-l9.
Further testimony regarding this alleged
violation is found in the testimony of Mrs. Licata at
R.llO-lll.
Even with Complainant’s Exhibit
2, however,
their testimony is unable
to support a finding of violation.
The evidence of violation on this date clearly shows that
there was a strong odor in the area,
and that it caused
serious inconvenience to various individuals, but again
there is simply insufficient evidence on the link between
the odor and the plant to allow
a finding of violation.
June 19,
1974.
The alleged violation for this date was
introduced in the testimony of Mrs. Nicholson,
at R.34.
Her testimony indicates that there was a serious odor in
the area of her home on that date.
Further testimony on the
June 19,
1974 violation came from Mrs. Volin, who more
directly linked the odor to the Clavey Road Plant.
She
gave evidence of an odor so severe that it limits the areas
in which she can comfortably walk,
(R.50).
Further testimony
regarding the same date was obtained from Mrs. Lipkin,
(R.62),
and again from Mrs. Licata,
(R.llO-lll).
Both witnesses
testified to severe odors and severe interference with their
enjoyment of life and property.
In addition, the stipulated
testimony of Mr.
Zirn,
(R.l39-140),
indicates an admission
of violation by Respondent,
as well as the existence of the
odor itself.
In this instance, neither the police reports,
(City’s
Ex.3), nor the Plant logs show any indication of violation,
(Respondent’s Ex.ll).
That, however,
is overcome by the
actual and stipulated testimony.
June 20,
1974.
This date is mentioned only in City’s
Ex.3,
the police reports, and no violation can be found.
June 21,
1974.
Citizen testimony with regard to the
violation alleged for this date is primarily that of
Mr. Walker.
Mr. Walker’s testimony indicated that he
smelled an odor like that of “decaying fish”,
similar to
odors present on April 16,
1974 and June 23, 1974,
(R.23).
In addition, there
is stipulated testimony as to an odor in
the same general area,
(R.l39).
However, neither of the
witnesses’
testimony with regard to the odor present on
June 21,
1974 is shown as being connected to the Clavey Road
Plant.
Further, both the
police
reports,
(City’s Ex.3),
and the Plant log,
(Respondent’s Ex.l2), would indicate that
any odor on that date came from a nearby swamp, and not
from the Clavey Road Plant.
No violation can be found.
(See
also City’s Ex.4, p.3.)
19— 203
—13—
June 23,
1974.
The alleged violation on this date is
supported in the record only by Mr. Walker’s testimony, which
does not show a relationship between the odors detected and
the Clavey Road Plant.
As was the case with the allegations
for June
21,
1974,
the police reports indicate either that
reported violations could not be verified, or that they
seemed to be coming from the nearby swamp,
(R.23,24; City’s
Ex.3).
(City’s Ex.4 also shows no evidence of violation.)
June
24, 1974.
The alleged odor on this date was
not the subject of any testimony, but nonetheless can be
found as
a violation.
City’s Exhibits
3 and
4 support such
a finding.
The police report,
(City’s Ex.3), indicates
that an odor violation on that date was verified by the
Highland Park Police Department.
City’s Ex.4,
a copy of
NSSD internal memoranda, provides sufficient grounds alone
for a finding of violation, and corroborates the statement
in the police report that there was a “strong odor of human
waste,” emanating from the Clavey Road Plant.
June 27, 1974.
This date is mentioned only in the
police reports
(City’s Ex.3).
No violation can be found.
June
28,
1974.
The alleged violation on this date
was one of those charged
in Highland Park’s Amended Complaint.
The first citizen testimony regarding this date was that of
Mrs. Facktor, who stated that she detected an odor between
midnight and 6:00 AM which was sufficient to awaken her.
Further testimony from Mrs. Volin was unsure as to the
specific date,
(R.48-50), but was buttressed by that of
Mrs.
Lipkin,
(R.60-65),
and Mrs. Salinas
(R.68).
In addition
to the actual testimony of those witnesses, which alone might
support a finding of violation, there is in addition the
stipulated testimony of Officer Marchinowski, of the Highland
Park Police Department.
His testimony,
(R.l5l), when taken
with the police reports for that date, which are based on
his findings, strongly supports a finding of violation,
(City’s Ex.3).
Respondent’s Ex.l3,
(the Plant
log), while
not amounting to an admission of violation, clearly allows
for the possibility of a violation.
In summary,
a finding
of violation for this date is well supported in the record.
July 1,
1974.
This date is mentioned only in the
police reports,
(City’s Ex.3).
No violation can be found.
19—
204
—14—
July 4, 1974.
The alleged violation on this date was
first charged in the City of Highland Park’s Amended Com-
plaint.
However, the only evidence regarding the alleged
violation is contained in the police reports
(City’s Ex.3).
As noted above, we may take such hearsay for whatever
natural probative value it may have.
We feel that the
police report, by itself,
cannot support a finding of
violation.
July 5,
1974.
A violation on this date was also
first charged in the Amended Complaint.
But in this case,
the police report of a verified odor complaint is complemented
by the testimony of Mrs. Schoenwald,
the originator of the
complaint to the Highland Park Police
(R.55-58).
Mrs. Schoenwald testified to the severity of the odor,
and
to the fact that she was unable to keep her windows open
because of it.
(See also, R.138, regarding testimony of
an odor over the weekend of July
4, 1974).
A finding of
violation is
supported.
§33 (c)
Respondent NSSD has expressly asked that the Board’s
conclusions in the earlier case of League of Women Voters
v.
NSSD, PCB 70—7,
12,
13,
14
(March 31,
1971) be included
in our consideration of the factors in
§
33(c) of the Act.
Further, NSSD has stated that our earlier conclusions in
that case are controlling here.
We assume that NSSD’s
position
is founded on our earlier statement that,
“tlhe
Clavey Road site is the most suitable one available;
the expansion plans within the guidelines of this opinion
should be carried out forthwith.”
We disagree with Respondent that the factors in
§
33(c) prohibit a finding of violation here, even with
our earlier statement on the issue of suitability of
site taken as controlling,
To facilitate our analysis,
we shall examine each of the factors in
§
33(c)
independently.
1.
The character and degree of injur~to, or inter-
ference with the protection of the health, general welfare
and physical property of the people.
There is no question
in this record that the odor emissions from the Clavey Road
Plant are causing serious interference with the enjoyment
of life and property of the citizens in the surrounding
area.
The record is replete with instances in which citizens
were forced to remain indoors, usually with air conditioning
running to filter out the odor.
People’s homes, occupations
and hobbies were all interfered with in significant degree.
19—
205
—15—
While we agree with Respondent’s Brief that the reasonableness
of this interference is to be measured in terms of the
remaining subsections of
§
33(c), we also note that the
interference seen here would be difficult to justify.
2.
The social and economic value of the pollution source.
Respondent states in its brief that “the
social and economic
value..,
is obvious and this Board permanently decided that
question when
it
ordered the Respondent to proceed with the
building of the plant.”
We disagree.
In our prior Opinion and Order,
the Board decided that
the Clavey Road Plant was necessary,
in its present location,
as the best solution available for a number of problems; our
Order in League of Women Voters,
supra, was primarily intended
to save Lake Michigan, and to provide a source of water for
the Skokie Drainage Ditch,
into which the Plant discharges.
In addition to that need,
the Board has also stated
generally that “the social and economic value of a sewage
treatment plant cannot be overestimated.”
EPA v. Township
Public Utility, PCB 74—421, Opinion at
8
(July
10,
1975)
see also, EPA v. Wheaton Sanitary District, PCB 74-351
(June
6,
1975); CBE v. North Elmhurst Sanitary District, PCB 74-
285
(June 26,
1975).
In each of those cases,
the Board stated that the
relative value of a sewage treatment plant is decreased by
improper operation or inadequate treatment which results
in
interference with the lives or property of surrounding
citizens, or in damage to the environment.
Clearly,
the
value of a sewage treatment plant may be outweighed by the
damage caused.
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 involved.
Respondent relied quite heavily on this subsection of
§
33(c), both at the hearing and in its Brief.
In fact,
Respondent’s cross—examination of the many witnesses
testifying as to the odor problem was confined almost solely
to the issue
of priority in location.
19
—
206
—16—
First,
the Board has previously stated that priority
in location
is not a blanket license to pollute.
Buelo
v.
Barrington Sportsmen Unlimited, EPA v. Barrington Sportsmen
Unlimited,
(consolidated),
PCB 74—303,
360
(March
13,
1975);
EPA v.
Incinerator,
Inc., PCB 71—69,
2 PCB 505,
511
(1971).
While the Clavey Road Plant obviously existed before many of
its neighbors moved into the area, this principle is particularly
applicable to the odor emissions here;
NSSD has been ordered
on several occasions to cease and desist odor pollution from
the Clavey Road Plant,
and has had more than sufficient time
over the years
to adjust its operations to minimize odors.
Any priority defense of NSSD expired long ago.
Further,
there is some question as to the question of
priority in an absolute sense.
The Board has previously
stated that the priority of a polluter does not arise at
the time of its arrival on a site.
A nuisance, under
§ 33(c),
can have priority only from the time that it becomes such a
nuisance, or that adjoining properties might have notice
that such
a nuisance will arise.
It is not clear from the
record here that the odor nuisance at the Clavey Road Plant
came into existance at the time the plant was built;
instead,
it seems quite likely
-
-
and the Opinion in PCB 70-7,
12,
13,
14
so states
-
-
that the odor problem commenced only
when the Plant became overloaded.
League of Women Voters,
supra,
Opinion at
24.
That being the case,
it is not clear
that Respondent even has priority.
See, CBE v.
North
Elnthurst, supra,
Opinion at
7.
Respondent also relies heavily on the statement quoted
above to the effect that the Clavey Road site “is the most
suitable one available.”
In that regard, we need only note
that that Opinion based that finding on an expectation that
the plant could and would be operated in such a manner as
minimize any odor emissions.
We stated that,
“the experts
tell us that the odor problems will subside.,.”, as the
additions to the plant which were Ordered were constructed.
The record here makes plain that the odors have not subsided.
That being the case,
our prior finding presents no defense
for the odor emissions which are the subject of this case.
Further,
it is of course implicit in our earlier Opinion
and Order that we based our Order on an expectation that
the plant would be properly operated and maintained during
the construction of the new facilities, and that Respondent
would proceed to abate any violation with all deliberate
haste.
Our Order No.
2 required that NSSD,
“cease and
desist from polluting the air...
to the extent reasonably
possible until the construction of additional facilities
which are required hereunder”.
Respondent has presented rio
evidence
to show that it could not have prevented the odors
testified to
in this case.
Indeed,
the log sheets submitted
as Exhibits by Respondent are inconclusive, and it is
difficult to find that Respondent has been seriously
attempting to deal with the odor problem.
19— 207
—17—
4.
The technical practicability and economic reasonableness
of reducin~5reliminating the emissions
.
.
.
from such pollution
source.
The Opinion in the League of Women Voters case,
supra,
incorporated into the instant record by Respondent, mandated a
specific course of improvement and expansion for the Clavey Road
Plant, which the Board found would serve to abate the odor problem.
Even without considering League of Women Voters, we find that it
is still economically reasonable and technically feasible to
eliminate essentially all of the noxious odors originating at the
Clavey Road Plant.
Respondent states in its Brief that it is
attempting to complete the work ordered by the Board.
Order no.
2
in League of Women Voters implied a requirement of maximum effort
to take all possible steps
-
-
within the framework of the ongoing
construction
—
—
to minimize the odor during construction.
This
would require, very reasonably,
that Respondent expend such further
time and effort as
is necessary to assure that the present
operations at the plant are run sufficiently and efficiently
to minimize further odor violations.
Nor do we feel that one
must expect noxious odors
in conjunction with a sewage treat-
ment plant;
we instead find the opposite: if a plant is
properly run, no serious odor problem will exist.
To conclude
consideration of this issue, we feel that the evidence here
shows Respondent’s failure to take all steps economically
reasonable and technically feasible, and in keeping with our
prior Order, to minimize odor emissions from its Plant during
construction of the new facilities.
In summary, we find that the evidence here shows violation
of
§
9(a)
of the Act on 10 specified dates.
On each of those
dates,
noxious odors emitted by Respondent’s Clavey Road Plant
unreasonably interfered with the enjoyment of life and property
of the residents in the vicinity of the Plant.
The causes of
the odor problem at Clavey Road are not unmanageable factors;
the cures are clearly within the realm of technical feasibility
and economic reasonableness.
With its present controls, Clavey
Road as now improved should be able to meet operating standards
which will prevent odors without any significant additional
expense.
PENALTY
The People ask as a remedy the maximum monetary penalty
authorized under the Act, as well as
a Cease and Desist
Order.
Highland Park, on the other hand, asks
for no
penalty, and instead asks that the Board order specific
actions on the part of NSSD which the City feels will
prevent future occurences like the violations which we have
found here.
—
208
—18—
The record,
(e.g.,
R.
179 et seq.), indicates that NSSD
has brought specific air pollution controls on line since
the dates of violation found above.
For that reason, and to
allow NSSD to apply all of its resources to abate existing
violations, we find that a monetary penalty would not be
appropriate here.
Since the entry of our Order in League of Women Voters,
supra, NSSD has taken considerable steps
to abate the serious
problems at the Clavey Road Plant,
in the area of odor covered
by this case as well as
in other areas.
Testimony here indicated
that some of the problems with odors at Clavey Road were generated
as a result of the construction of the improved and expanded
facilities there.
In some areas which should have been kept
closed to prevent the escape of noxious odors, workmen and plant
employees repeatedly left doors and windows open.
While we
feel that these odors could have been prevented in the short
term by proper operational and maintenance procedures, we also
feel that they occurred while NSSD was taking many of the proper
steps to provide a long term solution to the odor problem at
Clavey Road.
In fact,
in the recent case of NSSD v.
EPA, PCB 75-302
(Oct.
16,
1975), we found the progress a?the
Clavey Road
plant sufficient to allow
a lifting of the sewer ban imposed
in League of Women Voters.
These improvements were accomplished
at great expense pursuant to Orders of this Board and the
Circuit Court.
We feel that these improvements, along with
the remainder of the remedies discussed below,
(to take effect
either immediately or after additional evidence has been
submitted), will suffice to eliminate the odor problem at
Clavey Road.
While we must and do reprimand NSSD for the
short term violations which we find here, which have preceded
the completion of the Clavey Road plant improvements and the
implementation of the additional monitoring and reporting
requirements discussed below,
a penalty would serve no actual
purpose here;
in this instance, public funds will be better
applied to remedy the problem.
Our Order will instead
concentrate on elimination of the odor problem at Clavey Road,
in an effort to restore, protect and enhance the quality of
the environment in the area affected by Clavey Road.
19
—
209
—19—
REMEDIES
Highland Park asks the following relief:
1.
NSSD to set up air pollution monitoring equipment
at the Clavey Road Plant, such equipment to be the subject
of a further Board Order regarding timing and specifications.
2.
NSSD to initiate a monitoring result reporting
system, available to city inspection.
3.
NSSD to install automatic door closing devices at
Clavey Road,
and report on the effectiveness of sealing all
windows at the plant.
4.
NSSD to review its maintenance procedures for odor
and air pollution control, and increase future internal
record keeping on breakdowns,
etc.
5.
To make available to the City all existing records
of air pollution which
it presently has from a mobile
monitoring unit, and be required to dispatch that unit to
the site of future complaints.
Highland Park showed in its Ex.5 that Respondent has
been subject, since May 15,
1970,
to a Court Order requiring
just such monitoring as the City now requests.
People, et al
v.
NSSD,
et al, Case no.
69 CH 179
(19th Circuit,
Lake County,
May
15,
1970).
Respondent claims that the solution to its admitted
“problems”
lies not in the installation of monitoring equip-
ment, but in the completion of the plant expansions and
modifications now under way,
(Respondent’s Brief at 2,5).
Respondent pleads that we do not order any modifications of
the plant, claiming that the plant is already being designed
“by committee.”
We feel that Highland Park is correct.
First,
it would
appear that NSSD is tardy in fulfilling its duty to install
the monitoring equipment required by the May 15,
1970 Court
Order.
Secondly,
we feel that the remedy suggested by
Highland Park is eminently practical for the given situation.
19
—
210
—20—
The instant record is simply insufficient to allow the
entry of a final order on the subject of monitoring, however.
Highland Park’s suggested remedy may allow us to clear up the
remaining questions.
But the report or reports which we are
requiring in our Order should be better organized and more
thorough than the record seen thus far in this case.
The suggestion that automatic door closers be installed,
and that the windows be sealed at the Clavey Road Plant
seems reasonable.
The record indicates that considerable
quantities of odoriferous gases may escape through open
windows, and defeat the slight negative pressure needed to
ensure proper operation of the present and planned air
pollution control facilities.
We will also require that NSSD significantly upgrade
its present record keeping practices.
The log sheets for
the Clavey Road Plant which were seen in this record are
simply inadequate.
NSSD shall
in the future detail the
times, dates, problems, facilities, equipment, parts, and
persons involved in all breakdowns at the plant,
and in all
situations where odor emissions are the result of plant
operations.
While it would not be possible,
or practical,
for us to detail all of the exact procedures to be observed
under this requirement, we nonetheless feel that the require-
ment is reasonable.
It is sufficient to note that without
an adequate record of the problems encountered at the Plant,
it is impossible to solve the Plant problems.
This Opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD THAT:
1.
Respondent North Shore Sanitary District is
found to have violated Section 9(a)
of the Environmental
Protection Act,
in th~manner,
and at the times, detailed
in the accompanying Opinion.
2.
Respondent North Shore Sanitary District shall
cease and desist such violations.
19— 211
—21—
3.
Respondent shall make available to the City of
Highland Park and to the Environmental Protection Agency
all of its present plans for air pollution monitoring
facilities at its Clavey Road Plant, along with the results
of all research and development efforts on that subject to
date,
and all operational reports and results concerning
present or planned air pollution control facilities
at that
site.
4.
Respondent and Complainants
in this matter shall
individually or jointly consider the adequacy of plans for
air pollution monitoring facilities at Respondent’s Clavey
Road Sewage Treatment Plant.
The parties shall invite and
accept any participation by the Illinois Environmental
Protection Agency in such consideration.
5.
Respondent and Complainants in this matter shall,
if agreement on the subject of future monitoring at the
Clavey Road Plant can be reached,
submit jointly to the
Board a report to that effect within
90 days of the date of
this Order;
if such agreement cannot be reached,
those
parties shall
individually submit to the Board, within
90
days of the date of this Order, reports detailing exactly
their various positions on the matter.
6.
Respondent shall upgrade its record keeping
practices at the Clavey Road Sewage Treatment Plant
in a
manner consistent with the foregoing Opinion.
7.
Respondent shall install automatic door closing
mechanisms at its Clavey Road Plant, and shall either seal
or otherwise ensure that the windows at the Clavey Road
Plant remain shut at all times during normal operation.
8.
Jurisdiction by this Board is retained in this
matter in accord with paragraph
5 herein.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order
were adopted on the
~
day of
/)c4..,JJ4&~
,
l975byavoteofq’~o
Illinois Pollution
trol Board
19— 212
