ILLINOIS POLLUTION CONTROL BOARD

December 5,

1974

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 72—466

RAIL-TO-WATER TRANSFER CORPORATION,

Respondent.

ORDER OF

THE

BOARD

(by Dr.

Odell)

On September 27,

1974,

the Environmental Protection

Agency

(Agency)

filed a Motion For Modification with the

Pollution Control Board

(Board).

The Agency quotes page three,

paragraph three of our September

5,

1974, Opinion which states:

To decide whether 9(a) has been violated, we must

find not only that there has been interference,

but also that the interference has been unreason-

able.

To determine reasonableness, we look to

the standards

in Section 33(c)

of the Act.

The Agency asks us to revise this language.

The Agency argues

that the Illinois Supreme Court,

in City of Monmouth v. Pollu—

tion Contro,

Board

57 Ill.

2d 482,

313 N.E.

2d 161

(1974), PCB

71-259,

“has clearly indicated that a showing of

a Section

9(a)

violation of an “unreasonable interference” type, can be

made without relying upon Section 33(c).

That is, Section 33(c)

may be relied upon in fashioning remedies and penalties, but is

not

an element in deciding the issue of whether a violation

exists.

Had the court found that Section 33(c)

is an element

of proof of

a 9(a)

violation,

the Court could not have concluded

as it did, that 9(a) was violated since the element of technical

feasibility was improperly

introduced.’t

We deny this portion of the Motion by the Agency.

In a

recent case decided by the Illinois Supreme Court,

Incinerator,

Inc.

v.

Pollution Control Board

(#

46369, November,

1974), PCB 71-69,

the Coutt held that Section 33(c) must be considered

in determining

“unreasonable interference” under Sections 3(b)

and 9(a)

of the

Act.

The Court stated:

The principal question raised on this appeal

concerns the alleged violation of section

9(a)

of the Environmental Protection Act.

.

.

.

The

term “air pollution”

is defined in section 3(b)

of the Act as

“the presence in the atmosphere of

one or more contaminants

in sufficient quantities

and of such characteristics and duration as to be

injurious to human, plant,

or animal life,

to

health, or to property,

or to unreasonably inter-

14—583

---

—2—

fere with the enjoyment of life or property.”

Section

33(c)

of the Act provides

In City of Monmouth v. Pollution Control Board

(1974)

,

57 Ill.

2d 482,

it was alleged that section

9 of the Environmental Protection Act was uncon-

stitutional for the reason that it did not contain

sufficient standards for determining what constitutes

air pollution.

We there held that section 9(a) when

read in conjunction with other provisions of the Act,

including section 33(c), contains sufficient standards.

Likewise in City of Waukegan v. Pollution Control

Board

(1974)

57 Ill.

2d 170, we observed that section

33(c)

provides a protection against arbitrariness and

furnishes guidelines for the Board in reaching its

decision.

However,

in neither of those cases did we

give specific attention to the related issues now

raised on this appeal.

The provisions here in question rather clearly

direct that the unreasonableness of an alleged air

pollution interference must be determined by the

Board with reference to the section 33(c)

criteria.

Air pollution of the second category is not proved

unless there has been a showing of an unreasonable

interference with the enjoyment of life or property.

Section 33(c)

sets forth four categories

of factors

which bear upon the question of reasonableness and

specifically directs that the Board “shall take into

consideration’1

such factors in making its orders and

determinations.

Section 33(a) requires the Board to

file and publish a written opinion stating the facts

and reasons leading to its decision.

The Board must

take into consideration the factors referred to in

section 33(c)

and must indicate that it has done so

in its written opinion by stating the facts and

reasons leading to its decision.

(emphasis added)

The Agency also moves that we modify the language found

on page

7 of the Opinion which states,

“The evidence is incon-

clusive on many questions of fact.”

The Agency argues that al-

though it understands the statement to refer to methods of abate-

ment,

the sentence could be interpreted to mean that other evid-

ence,

such as the citizen’s statements, were “inconclusive.”

While we choose not to change the language in the Opinion,

we will explain the meaning of the sentence.

The sentence refers

only to inconclusive evidence on methods of abatement of particulate

emissions during the shiploading operations.

In particular,

in

some aspects of Phases II and III of the transport process, the

evidence was inconclusive as to the best method of control of dust

14—584

---

—3—

emissions.

In Phase III, effective methods of dust control for

tween—deckers were not introduced into evidence.

In Phase

II,

the evidence for methods of control of dust at the first emissions

source was not conclusive.

Some evidence of the need for an en-

closed system was introduced.

How such an enclosed system would

work was not fully explained by the Agency.

The Motion For Modification

is denied.

IT IS SO ORDERED.

I, Christan

L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify that

he above Opinion and Order was

adopted on the

~

day of

____________,

1974, by a vote of

____

to~

Christan L.~ffeft