ILLINOIS POLLUTION CONTROL BOARD
    August
    6,
    1971
    ENVIRONMENTAL PROTECTION AGENCY
    V.
    )
    PCB 71~-86
    STATE LINE FOUNDRIES,
    INC.
    Dissenting Opinion by N~.Dumelle
    The amount
    of the money penalty is my point of departure with
    the majority in this case.
    I believe that sound policy and past
    Board actions indicate that a fine in the range of $3,000~5,000
    would have been
    more reasonable than the $7,500 penalty voted for
    by the majority.
    In ~
    v.SouthernIllinos.sha1~Co.,Inc.
    (PCB 7l~3l) the
    Board dealt with
    an
    asphaltic concrete batching plant which was
    a
    gross neighborhood nuisance.
    The company was not
    a new enterprise,
    it had been
    in business
    for a number of years.
    Inexplicably the
    company had
    no
    permit from the EPA or its predecessors.
    Faced with
    such
    a flagrantly violative situation the Board imposed
    a money
    penalty of $5,000.
    In Roesch Enamel
    v.
    EPA, (PCB 7l~62) the Board considered the
    particulate emissions from
    a ferro~enamelingoperation.
    The
    company,
    partly through inattention,
    failed to complete the procedures required
    in the rules
    for filing and having approved an air contaminant emission
    reduction program.
    The Board in that case imposed a fine of $5,000.
    In both of the cases cited above the enterprise was clearly
    a “bigger business” than in the instant case and probably more
    readily able
    to
    absorb the financial shock of a multi~thousand
    dollar penalty.
    Equally as evident in the
    two cited cases was
    the
    intentional nature of each company~sfailure to comply with permit
    and abatement
    program
    procedures.
    In the instant case the foundry was a new business, having been
    incorporated
    in
    1967 and commencing
    operations in 1968.
    The foundry
    employed
    17 persons and probably had
    annual sales
    on
    the
    order
    of
    $300,000.
    Figuring at 6
    profit on sales
    would
    result
    in
    an
    estimated
    annual profit of $18,000.
    The fine of $7,500
    is thus almost 50
    of
    a year~sprofits.
    2
    —
    196
    The company~s failure to obtain a permit appeared to be
    inadvertent.
    The operations of the foundry were conducted in a
    remote area with only three residences within a half-mile radius.
    Of the
    three,
    two had no complaint to make while
    the third
    could
    not be contacted by the EPA.
    The
    desired results in each case before this Board is compliance
    with the applicable standard at the earliest possible time.
    This
    objective is not fully served,
    however, by an individual petitioner
    or respondent promising under oath that he will do such and such by
    so and so
    date,
    Incentives by way of bonds and/or money penalties
    are in order not only to insure that
    the individual litigant will
    comply but to inform others similarly situated that non-compliance
    is
    a serious social breach which may result in substantial money
    outlays
    by individual polluters.
    In
    this field of social activity
    as in every other, industry and other ‘polluters must know what
    the
    cost of doing business
    is.
    Obviously each case of penalty imposi-
    tion is mitigated or aggravated on its own peculiar facts but it
    is no part of this Board~sbusiness to force a legitimate enterprise
    out
    of
    business.
    Pollution hurts
    the public;
    the polluter must
    therefore be hurt
    a sufficient amount to
    force him (and others)
    to
    abate.
    The amount of hurt in each case must be below that threshold
    of financial pain leading to business abandonment
    so long as compli-
    ance is achieved.
    In this case,
    then, we have a small and new company which has
    admitted guilt and thrown itself at the Board~smercy.
    The’considerable
    cost of prosecution has been saved to the State.
    Yet the majority
    has levied
    a fine 50
    larger than that in the contested Southern
    Illinois Asphalt Co. and the Roesch Enamel Co. case cited earlier.
    The Board ought
    to encourage pleas
    of guilty.
    The fine in this
    case
    is much
    too harsh in the circumstances
    cited and may kill or
    seriously injure
    a
    small business.
    1
    ~
    /7
    ~L/
    I, Regina E.
    Ryan, Clerk of the Illinois Pollution Control
    Board, certify that the above Dissenting Opinion was submitted on
    the ~day
    of August, 1971.
    1 Board
    2
    —
    197

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