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City of Chicago v. Commonwealth Edison Co.

NOVEMBER 27, 1974.

THE CITY OF CHICAGO, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

The City of Chicago appeals from a decree denying injunctive relief sought by the City against the Commonwealth Edison Company. The City attempted to enjoin the operation of Edison's Hammond. Indiana, electric generating facility alleging that the facility was a common law nuisance to the residents of Chicago. After extensive testimony the trial judge found that the evidence was insufficient to establish that the plant constituted a common law nuisance. The court further held that the City's action was an attempt to ask a court under the guise of a common law nuisance doctrine to establish air-pollution standards in an area which is already subject to federal, state and local regulations. It was the trial court's opinion that such matters are best handled by regulatory agencies.

The City alleged in its first complaint filed in September, 1970, and in an amended complaint that emissions from Edison's Indiana station violated city, state and federal regulations and therefore constituted a statutory public nuisance. The court dismissed both complaints finding that the City could not enforce its ordinances with respect to the Indiana station. The court directed the City to amend solely on the basis of common law nuisance.

On December 1, 1971, the City filed a second amended complaint alleging that coal containing an excess of 3% sulfur by weight was burned at Edison's Indiana plant; that the Indiana facility was within 1 mile of the City of Chicago; that the burning of such coal results in the emission of sulfur dioxide, smoke, particulate matter, dust, fumes and other poisonous gasses constitute a common law nuisance; and that such emissions cause substantial, unreasonable and irreparable injury to the residents of Chicago.

Edison answered by denying that its Indiana station constituted a common law nuisance. Edison alleged that significant expenditures of money had been made in an effort to reduce particulate matter and sulfur dioxide emissions from the Indiana station. It was contended that during 1971, the average sulfur content of the coal burned at the facility was 2.0%, and during the latter half of 1971, 1.66%. Edison further questioned the propriety of an equity court's jurisdiction, alleging that the City had yet to exhaust available legal and administrative remedies.

A trial was conducted and evidence was received on the question of common law nuisance. The trial court ruled that the City had not met its burden in establishing that Edison's Indiana station constituted a nuisance to the residents of Chicago.

On appeal, the City contended that the trial court's finding was in error. Edison responded with the argument that the finding was not against the manifest weight of the evidence presented at trial. Edison further argued that the City is not authorized to bring suits to abate alleged nuisances originating in other states. We agree with the trial court's determination that the evidence is insufficient to establish that the Indiana facility constitutes a common law nuisance. Because the trial court's decision on the merits is completely supported by the record, we need not address the question of the City's authority to maintain this type of action.

The City initiated its case at trial with testimony from City "smoke inspectors." These five witnesses were trained to observe smoke and classify the density of smoke by the use of the Ringelmann Chart. *fn1 Numerous smoke observations were recorded by these inspectors measuring plumes from the stacks at the Edison facility to have an opacity between 60% and 80%. One of the inspectors who resides 1 1/2 miles from the Indiana station testified that "when the wind blows to the east" (towards Chicago), he could smell coal in the air and could see a gritty substance on cars and homes.

Upon cross-examination, it was revealed that water vapor in combination with particulate matter affects the density of the plume emitted. None of the smoke inspectors had made an effort to determine whether or not the plumes observed contained water vapor.

Dr. Paul Harrison, assistant director of technical services, Department of Environmental Control, City of Chicago, testified for the City as to the nature of the emissions originating at the Edison plant. Dr. Harrison began by offering a set of computations which purported to show the total number of tons of sulfur dioxide and particulate matter discharged from the station. Using these total discharge computations as a base, Dr. Harrison attempted to demonstrate the total amount of ground level concentrations contributed to the Chicago area under specific assumed wind and stability conditions. He did not employ the aid of a computer in his calculations.

Dr. Harrison's figures as to the total amount of particulate matter discharged by the station were developed by multiplying the percentage of fly ash content of the coal at the station by the total amount of tons burned. That result was then multiplied by the efficiencies of the station's pollution control equipment as shown in selected tests conducted and published by Edison. Dr. Harrison concluded that about 3 1/2 tons of particulate is discharged by the plant each month. Postulating that the wind blows over Chicago 33% of the time from the Indiana plant, Dr. Harrison stated that over one-half million pounds of particulate matter blew over the Chicago area each month.

To obtain the total amount of sulfur dioxide emissions discharged, Dr. Harrison multiplied the total tons of coal burned by the percentage of sulfur dioxide reflected in reports of various stack tests conducted by Edison. The average percentage of sulfur content used by Dr. Harrison was 2.5%. He stated that the total output of sulfur dioxide emissions from the Edison facility was approximately 15 million tons each month; 5 million pounds blowing over the Chicago area.

The testimony and exhibits at trial indicate that the data reflecting the total weight of emissions discharged from the stacks has in itself little significance except to form a basis for computing ground level concentrations. Dr. Harrison stated that suspended particulate matter concentrations from the Edison plant in the Chicago area is approximately 6,000 micrograms per cubic meter under the most turbulent conditions and a low wind speed. Under those same turbulent conditions with low winds, Dr. Harrison estimated that sulfur dioxide concentrations from the Edison plant could be as high as 57,155 micrograms per cubic meter at a distance .4 miles from the station.

Dr. Harrison attempted to compare his figures with the current federal standards in order to illustrate the impact of these concentrations on the health of Chicago residents. *fn2 He did not, however, testify to any specific medical consequences of ...


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