ILLINOIS POLLUTION CONTROL BOARD

December 13, 1973

)

ENVIRONI4ENTAL PROTECTION AGENCY

)

)

)

V.

)

PCB 73-182

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)

O’KEEFE BROS. COAL COMPANY

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)

DISSENTING OPINION (by Mr. Dumelle):

I concur with the majority in dismissing the alleged violation

of Rule 203 (f) (1)

,

because sufficient evidence is lacking in the

present record to support a finding of violation. I agree with

the majority that testimony as to coal particulate emissions emanating

from the O’Keefe Bros. Coal Company property on relatively calm

days would suffice to

find

a violation of Rule 203 (f)(1) by

negating the exception provided in the event of a wind speed exceeding

25 mph found in Rule 203 (f)(3).

I concur with the majority that

dates

of specific violations

as to alleged violation of

Section 9(a) of the Environmental

Protection Act are not necessary. Counsel for Respondent

repeatedly objected to testimony concerning alleged emissions

for failure to specify a specific date (R, 21, 82, and 92).

The hearing officer erred whenever he sustained these objections

as to violations of Section 9(a) of the Act as specific dates

are not necessary to sustain a violation of Section 9(a). The

majority agrees with this proposition and only would require specific

dates as to a violation of Rule 203 (f) (1) (Page 2 of the Majority

Opinion). However, I feel the Majority Opinion should have specifically

stated that dat~of specific violations of Section 9(a) of the Act

is unnecessary.

I dissent From the 4-1 Majority in that I feel sufficient

evidence was presented to find O~KeefeBros. Coal Company in viola-

tion of Section

9(a) of the Environmental Protection Act in that

it

caused

or threatened or allowed the emission of coal dust, either

alone or in combination

with

other sources,

in

sufficient quantities

and

duration so

as

to be injurious

to property and unreasonably

interfere with

the surrounding

ci tizens enjoyment of life and property

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Five citizens, who live within one-half block from the O’JCeefe

Bros.Coal Company, testified at the hearing, but the testimony

of one citizen witness was excluded from consideration by the

Board because of prejudice against Respondent. The remaining

four citizens all testified that they could identify the dust

in and around their homes as being coal dust because they

either used to burn coal as a home heating fuel CR. 19, 20)

or from the coal dust’s physical characteristics CR. 110, 132,

134, 167, 170 and 197). The four citizen witnesses testified

that they were subjected to more coal dust when the wind was

either from the south, southeast, or southwest (R. 48, 62, 63,

“If it happens to be day when thero is wind, and

I say in our cases the wind would have to be from

the west or southwest, depending from which direction,

the coal dust is driving toward our houses. It is

in the air. You can see it at that time”.(R.48)

The four citizen witnesses also testified that more coal dust is

present when coal handling operations are in progress at the

O’ICeefe Bros. Coal Company. Mrs. Karpinski testified:

“I tell you when you see most of it (coal dust)when

we have a wind front the southwest and they pick up

the coal with these big scoops and drop them, you

get all that dust coming, depending on the wind”.

Mrs. Canova testified:

“When they are loading their trucks up with their

big shovels or big scoops...you can see the dust

Mrs. Jabonski testified:

“...when the crane is...dropping your coal, there is

a certain amount of dust you can see as the coal is

Mrs. Jabonski further testified:

“I can do them in the morning (clean the venetian blinds

or window sills) and

when the coal ‘yard is working

you

can find it (coal dust) in an hour after you are

through dusting then, you have got a film there”.(R. 131).

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-3-

Both Mrs. Karpinski and Mrs. Jabonski testified that coal

dust was not present before O~KeefeBros. Coal Company located

in the neighborhood (R. 50, 116, and 117).

I would find that the above citizen testimony clearly establishes

that O~Keefe Bros. Coal Company was allowing the emission of coal

dust in sufficient quantities to constitute air pollution as

prohibited by Section 9(a) of the Environmental Protection Act,

I believe the Majority erred in dismissing the allegation of

violation of Section 9(a) of the Environmental Protection Act,

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Dissenting Opinion was submitted

on the J~day of December, 1973.

Christan L. Mo = ett~~~er~

Illinois Pollution ~~rol Board

Jacob P. Durnelle

10

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