ILLINOIS
POLLUTION
CONTROL
BOARD
September
26,
1972
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
)
v.
)
PCB
71—243
)
)
HARRY A
•
CARLSON
)
DISSENTING
OPINION
(by
Mr.
Dumelle):
My
main
reason
in
dissenting.
in
this
case
is
my belief
that
the
penalty
Imposed
by
the
Board
($2,500)
was
much
too
low.
I would have
imposed
a
penalty
of
at least $15,000.
I believe these are four
conditions
that
should be met
when
large penalties are levied after findings of
guilty
are
made.
These
are:
1.
The
injury
to
the
public
and
to
the
environment
must
be
severe.
2
•
The
party
being
penalized
must
be
reasonably
ccmpe-
tent
so
that
a
presumption
of
foreknowledge
of
re-
gulations
can
be
made.
3.
The
party
found
guilty
of polluting should not make
money
by
his
nisdeeds.
4.
The
party
being
judged
should be
able
to afford the
penalty.
The Oct. 16, 1971 record
shows
with great clarity the
extent of the injury to the public from Carlion’s landfill
operation.
The Village President of the Village of Worth, Mr.
Walter Kerkstra,stated
Like a couple of other witnesses prior,
I have noticed
the obnoxious odors, for one thing.
I have also witnessed-—
I
never
seen
a
Live one, but I have seen dea& rats on
the road in that area.
I also have noticed the lack of
cover
on the landfill operation from time to
time
and,
as
a
result
of
the
lack
of
cover,
many
papers and de-
bris, various kinds of debris, have blown into the forest
preserve area to the east and north.
(R.
64).
Mrs. Juanita
Altman,
a village trustee of Worth, stated
Well, when I have gone by I have seen papers on the road,
I have seen a messy situation with mud.
I have also
noticed rats.
And it stinks to high heaven.
And this
5—453
—2—
to me
is pollution,
(R.
51).
Mr. Gilbert Dobslaw verified odors
and
mud
on the read
(R.
59)
.
Village Trustee John Featherstone
testified
as to
odors,
debris,
papers and
live rats from
the Carison operation
(R.
69)
.
Another trustee,
Mr. Donald Christine,
testified
as
to dirt and mud
on
the highway which was
“actually hazardous”
in rainy weather.
He also verified
the odors.
(R.
73)
.
Mrs.
Patricia Cleary
told of her asthmatic
child
and how she would
have
to give him
a breathlyzer when going past
the landfill
(R.
76,
78).
And
so, beyond
a shadow of
a doubt,
Carlson’s failure
to
operate his landfill properly caused odors,
rats,
litter,
traffic
hazards and health effects
--
certainly severe enough effects
to warrant
a
large penalty.
The next element in assessing
a large penalty
is reasonable
competence.
One does not penalize an incompetent.
Mr. Carlson
operates
a landfill which serves 200,000 persons according
to
the stipulation,
and
so we can assume his competence
to
manage that large
an enterprise.
The penalty should be such
that,
if possible under law,
no financial gain ought he made by violating
the law.
Some
pain but no gain ought
to be
the
standard
by which
a penalty
is
set.
See
the dissenting opinion
in GAF Corp.
v. FPA,
(PCR 71-11,
Oct.
3,
1972)
for
a discussion
of
“savings—by—delay”
(p.
3)
Carison has admitted
in the
stipulation
to open dumping
and.
failure to place daily cover
on eight separate occasions
(p.
3)
A landfill
in Illinois
is required
to place six
inch layers
of dirt over two
foot thick layers
of refuse.
Thus
20
of
the
volume of
a
landfill as
a minimum will
be taken up by cover.
Add
to this extra cover required
by
the final dressing
(two
feet)
and the proportion
rises
still further
to perhaps 25
or
30.
The Carlson landfill had
an original volume of 1,600,000
cu.
yds.
(computed from
the dimensions on p.
1 as given in
the
July
1972
“Impact Statement”hy Roy
F.
Weston,
Inc.
attached
to
the stipulation).
Assuminq
the pit was
two-thirds full at
the
time
the complaint was filed on Aug.
18,
1971 then some 1,070,000
cu.
yds.
of material might have been placed
in
it to that time.
If all cover had been omitted
to that time,
some
260,000 Cu.
yds.
of volume might have been saved.
Space in
a
landfill
is
charged for at about $0.80 per cu.
yd.
Cover material
itself,
if not available
at
the
site,
might cost
$1.00
a
cu.
yard.
In
toto,
savings
in costs
and
increases
in revenues anproachinq
$400,000 were possib1e~
In this case,
since we do not know
the
extent of omitted cover
(except as we judge by
the vehemence and
sincerity
of the witnesses mentioned
earlier)
or
the volume
already filled,
the $400,000
ficjure can not be certified.
But
the example does
illustrate
that
in landfill operation
it might
5
—
454
—3—
pay well
not
to place cover material as req~aired.
Lastly,
in my outline at the beqinning,
I
stated that
the party being penalized ought to be
ab,e
to pay.
Since poverty
has
not been pled in this case we can assume that it is not
an issue.
In one of the Board’s earliest landfill cases
(EPA v.
Sauget, 71—29,
May
26,
1971,
1 PCB 636)
I dissented in a finding
which levied only a $1,000 penalty upon a fufltime landfill
operator who had been in the business for
some
19 years.
I
said then
The Board should look at the reasons for
a penalty.
If the penalty is to deter,
then
it should be a substantial one when
guilt is shown and economic ability to
pay is present.
Otherwise
the
Board’s
penalties will become “licenses to pollute”.
In this case,
I agree almost entirely with the reasoning
and findings in
the
majority opinion except as to the penalty.
The majority opinion (second paragraph,
p.
6) implies that the
Board had no choice in this case but to accept or reject the
penalty as an integral part of the stipulation
(“.
.
.
we
are
not disposed to set it aside
nor
to conduct further hearings
on the matter of penalty”).
This is not correct as the latest
stipulation dated Sept.
12, 1972 in paragraph 12(e) clearly
leaves the penalty to be determined by the Board.
I feel the
majority has placed undue weight upon Carlson’s $76,000 program
of correction
and
his abatement of the problems he
has
caused
by not following the law in the first palce.
By his admitted
flouting of the regulations he imposed a burden of nauseating
odors, rats,
litter, traffic hazards and air
and
water pollution
upon the environment and the public.
The environment is not
his to pollute--it belongs to the public.
The penalty should have been more than a slap on
the
wrist.
4em’r~.
01L
I, Christan Moffett, Clerk of the Pollution Control Board,
hereby certify the a
ye Disèenting Opinion was submitted on
the
/1”
day of
______________,
1972.
°‘~~‘
_
5—455