ILLINOIS
POLLUTION
CONTROL
BOARD
October 18,
1973
ENVIRONMENTAL
PROTECTION
AGENCY
COMPLAINANT
v.
)
PCB 73—104
D.
H.
I4AYOU ROOFING
AND
SUPPLY COMPANY
RESPONDENT
MR.
DENNIS
FIELDS,
ASSISTANT
ATTORNEY
GENERAL,
on behalf of the
ENVIRONL4ENTAL
PROTECTION
AGENCY
MESSRS.
JOHN
A.
BERRY,
ANDREW
J.
0’
CONOR
AND
MICHAEL
REAGAN,
ATTORNEYS,
on
behalf
of
the
D.H.
MAYOU
ROOFING
AND
SUPPLY
COMPANY
DISSENTING
OPINION
(by
Mr.
Marder
E~
Mr.
Dumeile):
On October 18,
1973,
the Board, by
a 3-2 decision, found
Mayou Roofing and Supply Company in violation of Section
9
(a)
and Rule 3-2.110 of the Rules
and Regulations Governing the Con-
trol of Air Pollution.
There is no dissent from the findings of
the Board; the dissent arises in the amount of penalty assessed.
The Order of the Board directed payment of
a $1000
penalty.
It
is the feeling in this dissent that the penalty was low in re-
lation to the violation Droven.
The finding of violation of Rule
3-2.110
is a minor point in this opinion,
in that there were suf-
ficient mitigating circumstances which would allow
a minor penalty
for this violation.
The main point of dissent
is the penalty im-
posed for violation of Section
9
(a)
of the Environmental Protect-
ion Act.
Respondent has been found to have emitted particulates well
within the allowable amount as directed by Rule 203.
The emissions,
however, did violate Section
9
(a)
of the Environmental Protection
Act by causing a severe nuisance and greatly interfering with the
enjoyment of life and property of
residents
in
the
immediate
vic-
inity.
9
—
541
—2—
Based on the record
(R.
261)
,
Respondent was ignorant of the
applicable air pollution regulations.
This is understandable and
could be construed as
a mitigating factor.
However,
several witness-
es have testified
(R.
31,
95,
102,
114)
that they have directly or
indirectly voiced complaints regarding odors
and emissions to the
Respondent.
The record is devoid of any effort on the part of Re-
spondent to either investigate the claims or attempt to abate same.
It
is largely on the basis of this
fact that this dissenting opin-
ion is written.
It is one thing to be unaware of
a violation,
and
quite another to have been questioned by residents as to a potential
violation and ignore the issue.
At
one point in response
to a
com-
plaint issued,
Respondent answered that his equipment was state-ap-
proved
(R.
96).
Nothing could be further from the truth.
The
question as to
the
amount of the monetary penalty im-
posed in relation to the ability of Respondent
to pay was raised
during
the
Board~sdiscussion on this matter.
In response to this,
this dissenting opinion simply states the facts.
A)
No evidence was elicited as to Respondent~s
financial status.
B)
Sums of money
were
expended to hire
a pro-
fessional photographer in Respondent~s
be-
half
(approximately $350)
C)
Sums
of money
were
expended to hire
a con-
sulting firm to conduct an
“odor survey”
in
Respondent
s behalf.
In
regards
to
(B)
and
(C),
Respondent certainly has the pre-
regative
of
generating
whatever
evidence
he
deems
necessary
to
fully
present
his
case.
However,
it
is
suggested
that
the
willingness
to
expend the sums involved
in
Steps
(~)
and
(C)
would
indicate that
Respondent could also expend sums on air pollution abatement,
and
should not be granted a reduced penalty for unknown financial
hard~
ship.
Perhaps the most disheartening factor involved in this act-
ion was the thread of lack of concern, or even worse, contempt for
the witnesses called, and the surrounding areas,
as displayed by
the Respondent.
I.
Photographic evidence on the part of Respondent: There
is no dispute that Respondent~sfacilities
are located in an area
which allows manufacturing.
If proof of this was required,
a sim-
ple copy of zoning regulations would have sufficed.
This causes
one to ponder the rationale of presenting approximately
55 photo-
graphs to portray the “character of the neighborhood.’
(R.177.)
9
—
542
—3—
It
is
felt
that
this
subject
was
too
lightly
covered
in
the
Opinion
and
Order
of
the
Board.
Testimony
shows
that
there
are
two separate sets
of
railroad tracks in the area,
and fully 18 of
the approximately 55 photographs show railroad tracks
(R. 219-220).
It
is
clear
that
the
intent is to show
a rundown neighborhood.
How-
ever,
whether
the
neighborhood
is
rundown
or
the
most
fashionable9
the
protection
afforded
to
its
residents
is
equal.
There
is
nothing
in
Section
9
(a)
which
ecuates
protection
from
air
ooiluticn
with
individual
affluence~
11.
No
detailed
discussion
on
the
following
point
will
ha
given.
Suttice
it
to
say
that
there
is
culte
a
d~f:erence
between
counsel
s
pursuing
his
client~s
interests
vigorously
and
bullying
and
badgering
witnesses,
The
attitude
displayed
during
cross~exarn-
ination
by
Respondent
counsel
shows
a
complete
disregard
for
the
dignity
of
the
individual.
In
past
cases
the
Board
has
found
that
odorous
emissions
have
been
found
to
warrant
significant
fines
(John
Juergensmeyer
VS.
Pox
Valley
Crease
Blending
Company,
POB
7O~35, Environmental
Pro—
t000iOfl
Agency
vs.
Southern
Illinois
Asphalt
company,
PCB
71—li)
Because
of
the
above,
it
is
felt
that
the
penalty
imposed
in
this
action
cas
below
the
amount
warranted.
‘
//
~
.Siclriey
N.
Marder
Board
Member
Jacoh
I).
Dumelle,
Chairman
I,
Christan
L. Moffett,
Clerk
of
the
Illinois Pollution Control
Board, hereby certify the
above
Dissenting
Opinion
by
Sidney M.
Marder
and
Jacob
D. Dumeile, was submitted on the
~
day
of
October,
1973.
Illinois
Po
9— 543