ILLINOIS POLLUTION CONTROL BAORD

August 5,

1971

Environmental Protection Agency)

v.

)

PCB

71-43

Lipsett

Steel Products,

Inc.

J,

H,

Xeehner, Assistant Attorney General of Illinois

for

the Environmental Protection Agency

R,

E.

Robertson,

for

Lipsett Steel Products,

Inc.

Dissenting Opinion

(by Mr.

Kissel)

I agree with the opinion of the Board in that

it

enters

a cease

and desist order against Lipsett prohibiting

any future open burning of boxcars,

but

I disagree with the

Board

in its decision to impose penalties on Lipsett for

the

six days of burning during 1971.

In order to under~

stand my reasoning,a review of this case

is necessary.

Originally, Lipsett sought

a variance from this Board

to permit it the right

to burn boxcars with the use of

gas

fired blowers, which substantially reduced the visible emis-

sions

from the burning.

Lipsett was operating under an

existing ACERP

(Air Contaminant Emission Reduction Program)

which expired on December

31,

1970.

That ACERP allowed

Lipsett to open burn

a certain number of boxcars every year.

Lipsett realized that its ACERP was going to expire, but it

also realized that

the recycling of boxcars was

an important,

as well as

a moneymaking,

activity.

As

a result, long be-

fore the ACERP was to expire Lipsett participated with the

industry to sponsor

a study by Booz-Allen to find

an emis~

sion free way of burning these cars.

Booz-Allen was given

the money, but the ultimate solution which they proposed

caused greater emissions than the burning~ofthe boxcars

themselves

the building,

in which the boxcars were

to be

burned, itself burned down.

Lipsett began then to look

for a solution to the problem,

and eventually found one.

In fact, they not only found

a complete, permanent solution,

but they

found an interim measure

the gas blowers

which

substantially reduced the emissions from the burning.

2

87

---

Lipsett tried desperately to get

the

Environmental Protec-

tion Agency to see

the permanent solution in Operation on

the east toast.

Actually,

the Agency representatives prom-

ised to view the operation,

and strung Lipsett along with

continuing promises.

Finally,

the Agency said they cou1d~t

go and told Lipsett that Lipsett would have

to file

a peti-

tion for variance with the Board if the new device was to

be approved.

Immediately, Lipsett filed the variance peti-

tion, but because it was filed in December,

there

was

no

chance of having the decision of the Board b~fore the

ACERP ran out on December

31,

1971,

Lipsett recognized

that their variance had been filed too late

and

in order

to make things clear with the Board, Lipsett appeared before

the Board asking for

a temporary variance until the hearing

was held on the variance itself.

Lipsett agreed at that

time that they would only burn boxcars with

the aid

of

a

gas blower device,

and only under certain conditions.

The

Board, however, noted

at that emergency hearing on the

temporary variance that it did not have the power

to grant

temporary variances, although since that time the Board

has taken somewhat of

a different position.

See

GAF Corpo-

ration v.

EPA, PCB 7l-llS, dated June 23,

1971,

Eventually,

the Board decided the variance

case, and by

a

3-2 vote

denied the variance.

Even before the variance had been

decided by

the Board,

the Agency had filed a complaint

against Lipsett for the

six days

of

“open burning” which

occurred during 1971 after the ACERP

had

expired.

The

majority of the Board decided to enter

a cease

and disist order against Lipsett prohibiting Lipsett from

doing any more boxcar

burning in the open, and to impose

a penalty on Lipsett of $6,000, or $1,000 for each day in

1971 during which Lipsett burned.

I agree with the deci-

sion to impose

a cease and desist order solely on the grounds

stated in the Dissenting Opinion filed by Dr. Aldrich in

the original Lipsett

case,

(Lipsett Steel Products,

Inc.

v. Environmental Protection Agency,

PCB 70-50, dated March

~

and I agreed that we would

grant the variance to Lipsett to allow them to burn boxcars

with the use of gas-fired blowers until June 30,

1971,

Since the Board decision on the second Lipsett case

(this

one) was on July

8,

1971, the cease and desist order was

totally in accord with

my

previous position on this matter.

2

—

88

---

As to the matter

of

imposing penalities against Lipsett

for the six days of burning

in 1971,

I am completely against

that.

In imposing penalities against any person or company,

I believe the Board should not only look at whether there was

a violation of the

law or regulations,

but also at the good

faith,

or lack of it, of the person or company against whom

the penalty is assessed.

In this particular case, while the

boxcars were burned in the open, perhaps

in violation of existing

regulations,

the burning was done with the aid of

a gas-fired

blower which substantially reduced the emissions from burning.

We saw the movies

to prove that.

Therefore,

I consider the

violations ~s something less than

some of the other boxcar

burners we have had before us,

who have used no devices to

control the emissions.

As

for the good faith of Lipseet,

I

think that there is no question on the record of facts presented

above that Lipsett has made substantial efforts to control the

emissions from boxcar burnir~g.

Time and again

it was Lipsett

who tried to solve the problem.

They have done an excellent

job in trying to promote the recycking of materials,

and we are

penalizing them for it.

This Board must penalize only those

who flagrantly violate the law without any effort to solve their

pollution problems.

We cannot punish those who have done their

best,

for

if

we do, we will find that no one will try.

I,

Regina

E.

Ryan, Clerk of the Board,

certify that

Mr. Richard J,Kissel submitted the above Dissenting Opinion

on the

5th day of August,

1971.

~

.1~)

2—89