ILLINOIS POLLUTION CONTROL BOARD

June

15,

1971

ENVIRONMENTAL PROTECTION AGENCY

V.

)

PCB 70-49

KOPPERS COMPANY

Dissenting opinion

(by Mr. Dumelle)

I disagree with the 4-1 majority opinion in this case and feel that

a substantial fine,

as much

as $5,600.,

should have been levied upon

the Koppers

Company.

On the record the Koppers Company would have known of

its high dis—

charges of phenol at the latest after the December

9, 1969 sampling

of 3,900 parts

per billion

(ppb)

which

is 19.5 times the

permit level

of 200 ppb.

Yet on Janpary

19,

1970 a discharge of

210 ppm

(1050

times

the permit

:Level) was recorded followed by an 11,000 ppb dis-

charge

(55 times the permit

level)

on February

2,

1970

and 8,000 ppb

(40 times the permit level)

on February

9,

1970,

The majority

in

this case relies upon the last sentence in its opinion,

~The Agency cannot rely upon the respondent to prove its case~and

has proceeded to verbally spank

the

Agency for a weak prosecution of

the case.

There is an obligation in this case which rests upon Koppers which

was not met and which deserves a fine to be assessed.

Koppers had an

obligation which the majority states “...to sample its effluent and

to take action as soon as it discovered that its existing facilities

were inadequate.~

I find it significant that Koppers

did. not introduce

any effluent data

into

the record.

Perhaps the Agency should

have

requested these effluent records if only to show their evident absence.

An ~experimental faci1ity~must by definition be monitored.

How else

is one to know if the “experimentt’

is

working?

This Koppers did not

do.

The usual argument of lack of technical competence

cannot be used

here as

a defense by Koppers.

Koppers is a great national corporation;

the Nay

1971

issue of FORTUNE lists

it

as the 209th largest

in

the

United States with annual sales of $532,841,000 and

with

15,490

employes.

it certainly had the

technical

competence to monitor

its

Hexperimentalu permit..

And it had an obligation,

as a major partici-

pant

in

the free enterprise system,

not

to

inflict

its wastes upon

the environment through deliverate overloading the waste treatment

facilities, which the majority concedes was done.

If we may paraphrase

a late President of

the

United States,

“The business of America is not

business

-

it

is

the protection of the

public

interest.”

I

—

583

---

One last argument can be made that we ought not to find Koppers

guilty on its own testimony.

But Koppers did testify and those

are the hazards of testimony under oath.

One can choose to remain

silent.

In the case of EPA v. C.E. Koons, PCB 71—30,

(June 9,

1971)

this Board by a 3-0 vote assessed a $100 fine upon a 77—year—old

man operating a sanitary landfill and the fine was based in part

upon the concession as to the violations

by the respondent.

In this case, a multi—million dollar corporation has not. monitored

when under obligation to do

so; has discharged phenols,

a toxic

chemical, at concentrations up to 1,050 times its permit level;

and has admitted overloading its waste treatment facility by 500

(60,000 gallons per day compared to a design rate of 10,000 gallons

per day).

These transgressions should have been punished with a

$5,000.

fine for violating the Act and $200 for each of the three

excessive effluents recorded after the December 9,

1969 incident,

for a total of $5,600.

3accb D. Dumelle

1-5$4