ILLINOIS POLLUTION CONTROL BOARD
    March 16, 2006
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    4832 S. VINCENNES, L.P., an Illinois
    limited partnership, and BATTEAST
    CONSTRUCTION COMPANY, an Indiana
    corporation,
     
    Respondents.
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    PCB 04-7
    (Enforcement - Air)
      
     
    DISSENTING OPINION (by A.S. Moore):
     
    I respectfully dissent from today’s majority interim opinion and order denying the
    People’s motion for summary judgment against Vincennes in this matter.
     
    While Vincennes claims it was not notified or informed of the presence of asbestos, “so-
    called lack of knowledge that the discharge existed provides no defense.” Meadlowlark Farms,
    Inc. v. PCB, 17 Ill. App. 3d 851, 861 (5th Dist. 1974). “The owner of the property that creates
    the pollution has a duty, imposed by the legislation, to take all prudent measures to prevent the
    pollution. The efforts by the landowner to control or treat the pollution go to the issue of
    mitigation, not to the primary issue of liability.” IEPA v. Russell Perkinson, PCB 84-83, slip op.
    at 6 (Oct. 20, 1988).
     
    I am further discomfited by Vincennes’ deference to its contractor with regard to asbestos
    abatement. In IEPA v. McHugh Construction Co.,
    et al.
    , PCB 71-291, slip op. at 3 (May 17,
    1972), the Board stated that “the question for our decision is whether, in light of statutory policy,
    a respondent is in such a relationship to the transaction that it is reasonable to expect him to
    exercise control to prevent pollution. In applying this test we recognize that there are cases in
    which a person who receives economic benefits from a transaction so lacks the capacity to
    control whether or not pollution occurs that it would be unfair to hold him responsible. We
    doubt, for example, that one who hails a taxicab could be held for its smoky exhaust, or the
    buyer of a pair of shoes for water pollution at the tannery.”
    Id
    . Following this analogy, I cannot
    place Vincennes in the same category as the taxicab passenger or buyer of shoes. On the basis of
    this record, I can only conclude that Vincennes’ responsibility for the site has been clearly
    established. For these reasons, I respectfully dissent.
     
     
    Andrea S. Moore
    Board Member
     
     
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
    dissenting opinion was submitted on March 16, 2006.
     
     
      
      
      
      
      
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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