ILLINOIS POLLUTION CONTROL BOARD

December

9,

1971

ENVIRONMENTAL PROTECTION AGENCY

v.

)

#

71-239

JACK McINTYRE and DWIGHT ROWE,

d/b/a JACK

& DWIGHT’S NuWAY

AUTO SALVAGE AND SALES

)

DISSENTING OPINION

(by Mr. Kissel):

The effect of the Board’s opinion

is to sound the death knell

for auto salvage dealers in Illinois.

I view this action with sin-

cere regret since the auto salvage dealer represents an important

link in the re-cycling processes. Under Title V of the Environmental

Protection Act,

this Board received

a legislative mandate to “mini-

mize environmental

damage by

.

.

.

encouraging

and effecting the

re—cycling and re—use of waste materials.t’

By this decision today,

this Board

in effect says that the small or medium size

auto salvage

dealer,

no matter what precautions he may take

to prevent fires,

is not to be

a part of this re-cycling effort.

In this case,

the respondents,

as of July

1,

1970, with

the

passage of

the Environmental Protection Act,

instructed their em-

ployees that open burning of auto hulks was

to cease.

No instances

of

fires on the premises were reported until November,

1970.

When

that fire occurred,

Jack McIntyre, one of the co—owners, sought the

advice of Marshall Monarch, Director of the Quad-Cities Regional Air

Pollution Control Board; Marshall advised him to install

a water tank

on his premises, which he did.

Unfortunately, when the next series

of

fires occurred in mid-December,

the 500—gallon water tank had

frozen.

The subsequent fires

in 1971 also resulted in damage being

done

to respondents’ wrecking equipment.

On several of these occa-

sions, respondent called the local fire departments;

one day—long

fire

in August,

1971

required over

20,000 gallons of water before

it could be quenched.

Though it may be true

that respondents have operated

a sloppy,

fire-prone salvage yard,

I believe that the Board has broadly inter-

preted the term “open burning”.

I,

too, am disturbed at the fre-

quency with which

fires occurred on respondents’

premises, but

I

believe them to be just that

-

“fires”

-

not open burning.

If the

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citizens

of this

State are

faced

with

a recurring fire menace, their

proper recourse is to

the State Fire Marshal and his investigatory

and penalizing powers under Chapter 127—1/2 of the Illinois Revised

Statutes, not to the Illinois Pollution Control Board.

Nor

did the Agency present any evidence that respondents were

conducting

salvage

operations

by

open

burning.

There

was

nothing

in

the

record

to

substantiate

that

respondents

were

burning

auto

hulks

to enhance their

value

on

the

market.

One

simple

question

put to

the operators of the salvage yard would have sustained such an alle-

gation,

but no such question was posed.

Further, there

is evidence

to the contrary;

I.e.,

in one

of

the fires their

new wrecker burned,

in another car seats that were being saved to be used as diking mate-

rial

were

consi~med.

On

page

4

of

the

Board’s

opinion,

Mr.

Lawton

states:

‘~Where

2500

cars

are

stored

for

ultimate

salvage

operations,

where

gasoline

is present in all or most of them, and where fire is

used

for

dis-

mantling,

the auto salvage operator has

a heavy burden of seeing

that no fires occur,

or

if they

do

occur,

that

they

are

immediately

extinguished.’

In the instant

case, respondents bore that burden.

When fire occurred,

the

fire department was called and the respon-

dents themselves used their caterpillar to smother the fire with

dirt and emptied the contents of

their

water

tank.

If

I were

to construct a majority opinion of the Board,

I would

not find that respondents had conducted open burning operations or

had

engaged

in

salvaging

by

open

burning.

Rather,

I

would

find

that

the

frequency

of

fires

on

respondents’

premises,

caused

in

part

by

sloppy

work

habits,

constituted

air

pollution

in

violation

of

the

Act.

Under

the

Act,

Air

Pollution

is

defined as follows:

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

proper-

ty,

or

to

unreasonably

interfere

with

the

enjoyment

of

life

or

property.”

Several

witnesses

testified

to

the

nuisance

such

fires

created.

Bar-

bara Gillian complained that the black smoke from the junkyard causes

black particles

to settle on the clothes hung out on the clothesline

(R.67,69).

Her husband stated that he. had to paint the house every

year due to the black

smoke

(R.l09).

Joyce Hodge, another nearby

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resident, complained of choking

to death from the old, black, rubbery

smoke

(R,l33).

This Board has previously held that such emissions

become ‘unreasonable” under the Act when

there is proof that there

is

an interference with

life and property and that economically reason-

able technology is available

to control the contaminant emissions.

(See Moody

V.

Flintkot~, PCB 71-69).

The interference

has been pre-

viously documented in this opinion,

Further technology was avail-

able to

the respondents

in this

case.

Respondents could have watered

down

the gas tanks of the autos received,

could have effectively

separated the cutting operation from the storage

of inflammable items,

and could have maintained

a year-round operational water tank.

I

would,

therefore,

find an air pollution violation, but believe that

the good-faith effort made by the respondents allayed the need

for

the imposition of

a monetary penalty.

I would then order the addi-

tional precautionary steps outlined above to be implemented.

I, Christan Moffett, Acting Clerk of the Pollution Control

Board,

certify that Mr.

Kissel submitted the above dissenting opinion

this

‘-./

day of December,

1971.

1’

Christan Mo,~ett,

Acting

CZ-thk

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