ILLINOIS
POLLUTION
CONTBOL
BOARD
July
18, 1974
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
)
v.
)
PCB 73-393
)
)
GLENN WILSON and GARY
BAILEY
)
)
DISSENTING
OPINION
(by
Mr.
Dumelle):
I
strongly object to the majority’s imposition of a $25.00
penalty for Hr. Bailey’s admitted violations of the Environmental
Protection Act, Section 9(c) which prohibits open burning and the
dismissal of the complaint against Mr. Wilson.
The Pollution Control Board has long been faced with complaints
regarding violations of Section 9(c), the conducting of salvage
operations by open burning.
The first such case was EPA v. Neal
Auto Salvage.Inc., PCB 70-5, 1-71, October 28,
1970.
In this
case the Board imposed the reasonable penalty of $1,000 for the
single open burning of a refrigerator truck body in violation
of Section 9(c) of the Environmental Protection Act and in
violation of 2’l.l of the Rules and Regulations Governing the
Control of Air Pollution.
“Salvage by
open
burning
has
been
illegal in Illinois since 1965.
It is time that it be stopped.”
Neal,supra at 77.
In the Neal case the Board stated that “we
enter the cease and desist order against Respondent but feel
that such order is not sufficientdeterrent to the type of activi-
ties being conducted.
A cease and desist order standing alone
would give potential offenders a chance to violate the statute
and
regulations
until
they
are
caught.”
(Neal supra)
The Board put not a slap on Bailey’s hand but a tap on
his wrist by assessing the sum of $25.00 as a penalty for
Respondent Bailey’s admitted violations because of Bailey’s
apparent lack of wrongful intent and straitened financial
circumstances.
In previous cases the Board has held that “poverty
is not an excuse: people who haven’t money to do business as the
law
required shouldn’t do business”, EPA v. loons, PCB 71-30,
1-663, June 9, 1971.
The evidence presented in the present case
13—93
shows
that
Mr.
Bailey
intentionally
burned 50
to
60
junk automobiles
in
orde~
to
remove
the
uoholstery
and
other
non-metallic
co~nponent~.
before
the
sale
of
the
burned-out
car
hulks
to
a
scrap
dealeT.
Mr.
Scrieber,
an Agency surveillance engineer,
stated that based
upon Emission
i::actor Book AP-42, pages
2-7, Tables
2-5, Emission
Factor Rating,
that
upon the open burning of 100 cars,
there
would be produced 10,000 to
15,000
lbs.
of particulate matter;
3,000
to 4,500
lbs.
of hydrocarbons;
and 12,500 to 18,750 lbs.
of carbon monoxide.
Ills assumptions were based upon a conserva-
tive 2,000
to
3,000
lbs.
per car weight.
He
further testified
that in the event
50
cars were burned that his calculated emissions
should be reduced by 50
(R.
38),
While Mr.
Schrieber could :~
answer the question
how
many cars were completely burned, his
calculated emissions further
support Agency Exhibit
1 and Fire
Chief Tate’s
testimony of the consequences of burning
50
cars.
At the least,
we can say that several tons
of particulates
were
probably
discharged.
No
evidence
was presented at
the hearing with regard to the
amount of money Mr.
Bailey paid Mr. Wilson for the junk automobiles
nor
the
value
of
car
hulks
once
they have been burned0 However,
it
is illuminating
to point out that the majority’s penalty assessed
amounts
to approximately 50~per car or $12.50 per ton of particulates
emitted,
Little deterrent exists from
such
a miniscule wrist
tap to prevent burning violations.
Both Mr.
Bailey and Mr.
Wilson
testified that they knew of other cases
in the surrounding counties
where such open burning salvaging operations have gone on and no
complaints
filed.
As stated in
the
Neal case,
a cease and desist order alone,
or in the present case, coupled with a $25.00 penalty makes
it
all too inviting for future violations based on the assumption
that one can profit by the sale of some
50
to
60
car bodies and
only be assessed a $25.00 penalty.
While not in
the
current record
and therefore cannot form any basis
of this dissent, current value
for scrap automobiles
is
at
a high point,approximately $40 per
car,depending upon the weight
of steel,
Mr.
Bailey
may
have
made
hundreds, perhaps thousands
of dollars profit by this violation.
Section
2(h)
of
the
Environmental
Protection
Act
mandates
that
the adverse effects
on the environment should be fully considered
and
borne
by
those
who
cause
them.
Such
small
penalties
as
in
the
present case and as recently declared by the Board in EPA v, Arnold
PCB 73-109, May
23,
1974,
do not provide the deterrent needed
to insure future compliance with the Act and Board Regulations,
and
do not fully ensure that
the
consequences
of
such violations
shall be borne
by
those who cause them,
Only penalties that make
it unprofitable
to pollute provide
a significant deterrent.
In
the present case
I would have assessed a much higher penalty.
~3—94
-3-
In regard to the dismissal of the complaint alleging that
respondent Wilson had violated Section 9(c),
I object
to the
dismissal because sufficient evidence was presented in the record
to support
a finding that Wilson allowed the violations
of 9(c).
There would not have been any junk automobiles for Mr. Bailey
to burn, had not Mr. Wilson been involved in
a towing and wrecking
service,
Mr. Wilson has for thepast twenty years hauled cars
onto
the property in question
(R.
57).
Mr. Wilson
is engaged in
a towing and wrecking business
as well as
an auto parts
and salvage
business.
While the evidence presented in the record indicates
that Wilson had sold the
cars
to Mr. Bailey;
it does not indicate
beyond
the statement “on or before July 12,
1973”, the date
of the
violation,
as
to the date when Wil~sonsold the automobiles
to Bailey.
Mr. Wilson was fully apprised of the fact
that the upholstery
had to be removed from junk automobiles
(R.
68),
He testified that
Mr. Bailey had a designated area out at “our place” which was
a
gravel
ring
to cut motors out with a torch and take parts out
that thesalvage yard would not buy
(R.
69),
Wilson testified
that he used a cutting torch in his salvage business
to cut parts
out for resale.
He
further
testified that the cheapest manner
to remove the upholstery was to burn the junk cars rather than
hand removing the upholstery
(R.
71).
Mr. Wilson was quite
apprised that people burned junk automobiles before transporta-
tion
and sale to the scrap yard.
In answer
to the question “you
have
heard
of people
burning them before?”
Mr. Wilson answered
“Oh,
yeh, they burn them out everyday,
I guess because they go
by our
place load after load”,
He further stated that he could
understand that Bailey burned out the
cars because
it was cheaper
than hand removal
(R.
72),
Mr. Bailey additionally testified
that it was necessary to remove the
50
to
60
cars
in order
to
obtain
more room for
his salvage operation.
To
dismiss
the complaint against Wilson, the majority must
ignore
the relationship between Bailey and Wilson,
Mr. Wilson
knew
that
Bailey
was going
to
conduct salvage operations
on the
gravel
circular
drive
area;
he
knew
that
the non-metallic components
of the car must be removed before sale to
a salvage dealer;
and
he further knew that
it was much easier and cheaper to
remove
the
upholstery
by open burning.
In an analagous fact pattern, the Board has previously held
that
the
lack
of
knowledge
of
burning on
a refuse disposal
site
cannot
be
considered
defense;
that
the
operator
of
a
refuse
disposal site should have known that
there may be abuses by those
who dump at the refuse disposal site;
and that “those persons
would use the illegal means of open burning
to dispose of their
waste” (EPA
v.
Eli Ami
oni, PCB 70-15, 1-229,
230, February
7,
1971),
iting EPA
v,
Neal,
supra,
the Board further stated
that “an operat~’~’~”Te
use disposal facility must be responsible
13
—
95
ci
~ie sctions
of
those who he allows
to
dump refuse on his
per y
jc
such persons use open burning to dispose of the
Fuse on his property,
it will be presumed that such is allowed
a d consented to by the owner of the refuse disposal.
An owner of
c~facility has
a duty
to
supervise
its operations
and to stop
open burning on them whether by himself or by those he allows
to
do
so
~
supra at
230),
Ii~soncreated the situation which led to the open burning
iiolations by Bailey,
Wilson further knew that Bailey was going
to con~~uctsa’vage operations
on his property and that such
~alvage operations might have predictably been carried out by
topen burning,
The Board should have appl~edtne precedent that
one who owns or controls a refuse disposal site must bear
the
responsibility for violations
that occur on that site,
As
further precedent the Board has held in numerous cases dealing
~
‘promiscuous
dumping”,
that the
owner
of
a piece of land
on which others dump
refuse has
the responsibility of
prohibiting
such open dumping violations,
The majority
reasons
that Wilson had no control
over Bailey
once he had sold the
junk autos to Bailey.
An
analogous situation
to
the contrary is
the
downstate farmer who owns
a piece of land
on which
a
gob pile remains from the previous landowner’s mining
perations.
The Board has held the current landowner liable for
nollution occurring from such gob piles
even though the factor
which caused the pollution to occur was
an act of God, rainwater,
These cases have been upheld on appeal
(See ~
Inc.
v. PCB
f, EPA
308 N.E.
2d,
829 and Freeman Coal Minin
Cor oration
v,
CB
f, EPA,
5th Appellate District,
No,
31
,
June
28, l9~
The majority in dismissing the charge against Wilson creates
precedent
for circumventing the Environmental Protection Act and
Board Regulations by merely transferring title to the pollution
source to
a
(indigent)
third person and then taking
a trip
to
Florida or otherwise turning their back,
This should not be
allowed
to continue,
I would have found Mr. Wilson in violation
of Section 9(c)
of the Environmental Protection Act by allowing
Mr. Bailey to violate Section 9(c)
of the Act,
I would have
assessed a substantial penalty of perhaps
$1,000
to eliminate
any profit by
these violations and imposed a cease and desist
order to insure that Mr. Wilson would not be allowing
such
viola-
tions
to occur
in
the future,
I,
Christan
L.
Moffett, Clerk
e Illinois Pollution
Control Bo4rd,
her2~~~ti
ythe
above
Disse
ng
Opinion
was
submitted
on
the
~~day
~nL,oe~er
Illinois Pollution C~ntrolBoard
(1
13—96