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

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