ILLINOIS POLLUTION CONTROL BOARD

October 17, 1972

ENVIRONMENTAL PROTECTION AGENCY

)

PCB 72-243

JERRY FRYE

DISSENTING OPINION (by Mr. Dumelle)

While I agree *ith the decision in this case I do not agree with the

amount of the penalty levied.

A penalty should penalize and $500 is simply inadequate in this case.

The respondent Mr. Jerry Frye has been twice fined by the Circuit Court

of Mercer County in the past under a statute with a different penalty structure.

Repeaters ought to have their penalties increased by at least an order of

magnitude (ten times) over the past amounts levied of $50 plus $22. 40 in

costs (November 7, 1969 and $200 plus $22. 40 in costs (February II, 1970).

Thus a penalty of at least $2000 would have been appropriate just on the

ground of repeated violations.

The majority opinion finds and I agree that seven violations on four

counts were proven. The Environmental Protection Act provides for

penalties up to $10, 000 for violation of the Act plus $1, 000 for each day

of violation. Thus total penalties of at least $43, 000 could have been

levied by this Board.

An amount near $43, 000 would be clearly excessive in this case but

it is useful to compute as an upper limit.

The most serious violation to me is that of not securing a permit for

the landfill some 27 months after the passage of the Environmental Protection

Act. A landfill permit is the only way in which the public cap be certain that

the site is suitable for refuse disposal. If the Frye site is found to be unsuitable

then it may mean that an aquifer has now been polluted essentially forever.

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In addition, polluted aquifers may emerge into streams to cause problems

there. We may be cleaning streams with expensive sewage plants only

to he despoiling them with aquifers polluted by poorly located landfills.

In other Board decisions we have levied penalties of $1000 and up

for failure to obtain permits on pollution sources (see EPA

State Line

Foundries, Inc., PCB 71-86, August 5, l97i, 2PCB 191, where a severe

penalty of $7, 500 was imposed over my dissent). Mr. Frye is a businessman

with 64 municipalities and 4 counties as customers.

He services 11, 000 homes

with a fleet of 9 trucks and owns 3 bulldozers used at his landfill (R, 64).

The record shows he has been in his business prior to April 1969 (H. 55).

Thus, his claim that he was “not aware it was necessary to have an EPA

permit (H. 55) is difficult to believe. Any businessman with an enterprise

of this magnitude and duration would be aware of the permit requirements.

I would have levied a $2, 000 penalty because of repeated past violations

and failure to obtain a permit.

/Jaoob D. Dumelie

Ráard Member

I, Christan L. Moffett, Clerk of the Illinois Pollution Control Board,

hereby certify the above Dissenting Opinion was submitted on the~2~ ~day

of November, 1972,

~fL~L~

Christan L. Moffett, Cl~p~,’

Illinois Pollution Control1~bard

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