ILLINOIS POLLUTION CONTROL BOARD
    July 7,
    1971
    GAF CORPORATION
    PCB 7l~ll
    ENVIRONMENTAL PROTECTION AGENCY
    Dissenting Opinion
    (by Mr.
    Dumelle)
    The
    4~l
    majority opinion of June
    28,
    1971
    extending the variance of
    GAF
    for
    90
    days
    or less if
    a decision is reached,
    sets
    a dangerous
    precedent and makes
    a mockery of the original Board order of April
    19,
    1971 approved by
    a unanimous vote~
    The
    conditions
    of the Board order of April
    19,
    1971 are quite clear.
    The order states that GAF
    “shall have completed plans, obtained all
    leases and permits and begun construction of
    the secondary facilities,
    by June l9~l97l~”
    GAP has
    not completed the plans for
    the secondary facilities by
    June l9~ 1971,
    its Supplemental Petition states that engineering
    design work will not be completed until September
    1971
    (p9)
    GAF has
    not obtained all leases by June
    19,
    1971,
    It admits that the
    sublease agreement between Phoenix Manufacturing Company and GA? has
    not been approved by the Metropolitan Sanitary District of Greater
    Chicago
    (Supplemental Petition,
    p,S)
    GA? has
    not obtained
    all permits required by
    the June
    19,
    1971 date.
    It admits that the permit from the Illinois Division of Waterways
    and
    the permit from the U,S.
    Corps of Engineers have not been issued
    (Supplemental
    Petition, p~7)
    The original Board order also requires that a “bond or other adequate
    security in the amount of $2,600,000” be posted with EPA before May 19,
    1971,
    Counsel for GAF stated
    this has
    not been done because of the
    pendency of the appeal.
    The Board order further requires that a penalty of $l49,000 be paid by
    GAF
    to the State of Illinois by May
    19,
    1971,
    Again, counsel for GAF
    stated that the penalty had not been paid pending appeal~
    Nothing
    in the Board’s order provides
    that upon appeal or for
    any other
    reason the
    conditiomb are
    stayed.
    Quite the contrary,
    the last condi’~
    tion
    in the Board order predicates
    the entire April
    19
    —
    June
    l9,
    1971
    variance upon meeting all
    of the conditions
    of the order,
    GAF’s filing of
    its
    appeal does not suspend the operation of the
    Board’s April
    19
    order;
    the filing of the appeal does not automatically
    act as
    a
    stay,
    The only proper way for GAF to prevent the execution
    of the Board’s order would be to take those steps necessary
    to effect
    a supersedeas in the appellate court~
    Interim relief in the nature
    of
    a •stay from the operation of the Board’s order of April 19 could
    have been granted by the appellate court
    if GA? had filed a supersedeas
    bondS
    We have
    in the grant of an additional
    90 days to GA?
    in spite of
    the admitted non~cornpliancewith
    the explicit conditions of the original
    order
    the spectacle of the Board issuing a strong order and then beating
    a hasty retreat from that order,
    The Board should say what it means
    in its orders and it should mean what it says.
    If it meant to condition
    GAF~svariance on some indefinite measure of progress achieved and to over-
    look
    the payment of the penalty and filing of the bond by reason of an
    appeal being in progress
    it should have said so~
    By its further order of
    June 28 the Board has in effect said “Don’t read our orders literally
    —
    they are all subject
    to negotiation~”
    GA?
    is the
    19 3rd largest corporation
    in America
    as ranked by Fortune
    magazine in
    its May l97l~issueS
    It had
    sales
    of $598,706,000 in 1970;
    19,773 employes
    and ~rofits
    of $l4,694,000~
    If the Board had not
    granted the
    90
    day variance extension on June
    28,
    1971 what would have
    been the consequences?
    The Board opinion of April
    19,
    1971 discusses
    the alternatives
    open to GAP
    (n,9)
    These are,
    simply stated,
    to shut down the plant,
    or to continue to operate and hope that enforce-
    ment proceedings might not be brought or that penalties would be
    lightS
    And these alternatives are self—inflicted since they were caused
    by GA?’s inexcusable delay in providing treatment,
    This Board has no obligation
    to
    a corporation with the sophistication
    and resources which GA? has,
    to continue to shield it from prosecu-
    tion when the company has not met the very conditions imposed
    u.pon it
    by this Board in
    a prior proceedin~.
    Indeed
    if the Board had meant
    what it said on April
    19,
    1971 the original
    60
    day variance would now be
    cancelled,
    The Board
    in its action of June
    29 has shown that it is all thunder
    and no lightning,
    (
    ~.
    .~
    —~
    1/
    __~
    _,,~_

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