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,
(
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