ILLINOIS
POLLUTION
CONTROL
BOARD
October
3,
1q72
GAP
CORPORATION
PCB
71-11
PYVIRONMENTAL
PROTECTION
AGENCY
EYV:RONMENTAL
PROTECTION
AGENCY
PCB
72-50
GAP
CORPORATION
DP3SENTING
OPINION
by
Yin.
Dumelle)
In
filing
this
opinion
some
two
months
after
the
decision
I
have
had
benefit
of hindsight,
The
Citizens
Utilities
v,
EPA
case
(PCB
71-125,
October
14,
1271) has
been
decided
by
the
Appellate
Court
which
has
said
this
Board ha~no
power
to
lewv
penalties
in
variance
cases,
That
is
what
the
instant
settlement
was
all
about,
In order
to
avoid
an appellate
on
PCB
71-11
the
majority
agreed
to
a 550, 000
settlement
in
lieu
of
the
2142,
000
originally
thought
lust,
And
the other
GAP
case,
PCB72-50,
was
also
settled
for
515,
000,
Let
me
briefly
state
my
reasons
for
dissenting
in this
case:
1)
When
the
Board.
on
April
12,
1271
voted
4-0
to levy
a
nenain;
of
3142,
000
upon
GAP
it
felt
then
that
it
had
the
legal
po-’:er
to
do
so
and
that
the
flagrant
disregard
of
Des
Plumes
River
cleanup
merited
the
use
of
the
statutor-;
maximum
penalty
possible,
The
Board
should
have
had
the
courage
of
its
legal
convictions
and
should
have
squarely
faced
the
appellate
test.
It
is
my
belief
that
the
appellate
court,
had
they
received
this
caso,
would
have
understood
the
significance
of
a
discharge
to
the
Des
Flames
River
equal
to
the
ra~,’;se.~:age strength
of
20,
000
people.
The
court
maid
have
ceighed
Joliets
and
Marseilles~
and
-2-
other
cities
rights
to
clean
water
against
the
delay manifest
in
this
case.
And
in
that
setting
the
court
might
have
concluded that
we had
and
needed
the
power
to assess
penalties
in variance
cases.
But now the
precedent
has
been
set
against
the
Board
in
an
insignificant
case.
Would
it
not
have
been better
to have
bit
the
bullet
on
the
main
case?
2)
The
extreme
haste
and the
unauthorized
settlement
negotiations
in
these
cases
were
disturbing
to
me.
The
settlement
proposal
was
filed
with
the
Board
at
noon
on
September
25
and acted
upon
the
next
day with
just
four
business
hours
to reflect
upon
this
matter
(and
also
upon
a
50-item
agenda).
The
Attorney-General
was
never
specifically
authorized
by
the
Board
to nego-
tiate
a settlement
at
the appellate
level.
I
do
agree
fully
with
the
majority
opinion
on
the
Boards
now
enunciated
role
in approving
settlements
of
appeals
from
its
decisions.
The
Board
is
not
a court--it
is
an
agency
that
many
times
fashions
its
own
remedies
out
of its
experience.
It
should
therefore
itself
decide
whether
the
conditions
of
its orders
ought
to be
changed
at
some
later
date
when at
the
appellate
review
stage.
3)
The
companion
case,
PCB 72-50,
involves
air pollution.
The
stipulation
in this
case
is
quoted
in the
majority
opinion
and bears
repeating.
GAF
is
stated
by
the
Agency to have
created
a
nuisance
for
the
community..
by
emitting
asphalt
odors
which
citizens
have
found
objectionable
and by
emitting
copious
amounts
of
particulate
matter
which interfere
with
normal
lives
of
the
local
citizens~.
How
~objectionable~
were
the
odors?
Did they
cause
people
to become
nauseated
as
in another
roofing
company
case
(Bemmerich
V.
Lloyd
A.
Pry
Roofing
Co.,
PCB
71-33,
2PCB
581,
October
14,
1971) in which
we
levied
a penalty
of
550, 000?
Did the
tcopious
amounts
of particulate’
interfere
with people’s
lives
to
the
extent
we
sawaln
a case
(EPA
v.
incinerator,
Inc.
PCB
71-69,
2PCB
505,
September
30,
1971) in
which
we
levied
a
825,
000
penalty?
We
will
never
know because
the instant
case,
BCE
72-50,
never
went
to public
hearing.
5
—
536
—~-)—
The
Environmental
Protection
Act is
designed
for
public
participation
and
citizen
involvement.
It
makes
a mockery
of
the
Act to
deny
citizen
participation
by
settling
a
case
on
four
hours
con-
sideration
without
knowing
the
dimensions
of inter-
ference
with
people’s
right
to
enjoy
clean
air.
4)
In
summary,
the
majority,
by
accepting
this
settlement
has
reduced
the
penalty
to
a
major
water
polluter
by
$99, 000.
No
new facts
have
been
alleged.
GAP
Corporation
with
annual
sales
in
excess
of
$699
million
is
now
180th largest
in the
United
States
as
against
its
193rd position
in
1970
(FORTUNE,
May
1972,
p.
196)
and
so poverty
can hardly
be
claimed
as
a
reason
for mitigation.
The air
pollution
case,
with
its
admitted
8-month
delay
by
GAF
woud
have
left
the
company
liable
for
a penalty
of
up to
$250, 000
(240
days
delay at
$1, 000 per
day plus
$10,
000 for
violating
the
Act) had
the
majority
allowed
it
to
go
to
hearing.
Delay
in
installing
air
pollution
control
equipment
saves
a firm
money.
Virginia
Brodine
in “Running
in
Place’
(Environment,
Jan,
-Feb.
1972,
p.10)
states
efforts
to
abate
pollution
at every
governmental
level
have been
stalled
by
delaying
tactics
and
court
action,
There
are
good
dollars-and-cents
reasons.
Benjamin
Linsky,
San
Francisco’s
first
air
pollution
control
officer,
and
now
a professor
of
air
pollution
control
engineering
has
told
Congress
that
each
year
a public
utility
defers
the
installation
of
one
million
dollars
worth
of air
pollution
control
equipment,
the
utllity
is
ahead
by
about
$200,
000
to 5300,
000.
Let’s
compute
GAP’s
“savings-by
delay’.
Using
Linsky’s
median 25~savings
figure
and
multiplying
by
the
GAF
capital
cost
for
its
control
program
($1,
555, 802)
and
adjusting
this
for
8
months
instead
of a year
we
find
that
$259,
300
was
saved!
The
$15,
000
settlement
WaS
a good
business
bargain.
5
—
537
-4-
The
GAP
water
case,
PCB
71-11,
has
been
marked
by
fits
and
starts
on
the part
of
the
Board.
On
April
19,
1971
the
penalty
and certain
conditions
were
set.
On June
28,
1971
the
Board
retreated
from
some
of these
conditions
(see
Dissenting
Opinion,
2PCB
59).
Now
a further
retreat
has
been
made
and a
penalty
meant
to penalize
has
been
discounted
66.
How
do
all
of these
actions
appear
to
the
public
and
the
would-be
polluters?
The
Bible
tells
us
If a trumpet,
for that
matter,
gives
out
an uncertain
note,
who will
arm
himself
for
battle?
(I
Corinthians
14:8,
The
Holy
Bible,
Knox
Translation,
1950,)
~:
~
~
D.
Dumelle
/
Board
Member
I,
Christan
L,
Moffett,
Clerk
of the
Illinois
Pollution
Control
Board,
hereby
certify
the
above
Dissenting
Opinion
was
submitted
on
the
7 ~
day
of
December,
1972,
Christan
L.
Moffett,
Cler~V
Illinois
Pollution
Control
Board
5
—
538