ILLINOIS

POLLUTION

CONTROL

BOARD

October 18,

1973

ENVIRONMENTAL

PROTECTION

AGENCY

COMPLAINANT

v.

)

PCB 73—104

D.

H.

I4AYOU ROOFING

AND

SUPPLY COMPANY

RESPONDENT

MR.

DENNIS

FIELDS,

ASSISTANT

ATTORNEY

GENERAL,

on behalf of the

ENVIRONL4ENTAL

PROTECTION

AGENCY

MESSRS.

JOHN

A.

BERRY,

ANDREW

J.

0’

CONOR

AND

MICHAEL

REAGAN,

ATTORNEYS,

on

behalf

of

the

D.H.

MAYOU

ROOFING

AND

SUPPLY

COMPANY

DISSENTING

OPINION

(by

Mr.

Marder

E~

Mr.

Dumeile):

On October 18,

1973,

the Board, by

a 3-2 decision, found

Mayou Roofing and Supply Company in violation of Section

9

(a)

and Rule 3-2.110 of the Rules

and Regulations Governing the Con-

trol of Air Pollution.

There is no dissent from the findings of

the Board; the dissent arises in the amount of penalty assessed.

The Order of the Board directed payment of

a $1000

penalty.

It

is the feeling in this dissent that the penalty was low in re-

lation to the violation Droven.

The finding of violation of Rule

3-2.110

is a minor point in this opinion,

in that there were suf-

ficient mitigating circumstances which would allow

a minor penalty

for this violation.

The main point of dissent

is the penalty im-

posed for violation of Section

9

(a)

of the Environmental Protect-

ion Act.

Respondent has been found to have emitted particulates well

within the allowable amount as directed by Rule 203.

The emissions,

however, did violate Section

9

(a)

of the Environmental Protection

Act by causing a severe nuisance and greatly interfering with the

enjoyment of life and property of

residents

in

the

immediate

vic-

inity.

9

—

541

---

—2—

Based on the record

(R.

261)

,

Respondent was ignorant of the

applicable air pollution regulations.

This is understandable and

could be construed as

a mitigating factor.

However,

several witness-

es have testified

(R.

31,

95,

102,

114)

that they have directly or

indirectly voiced complaints regarding odors

and emissions to the

Respondent.

The record is devoid of any effort on the part of Re-

spondent to either investigate the claims or attempt to abate same.

It

is largely on the basis of this

fact that this dissenting opin-

ion is written.

It is one thing to be unaware of

a violation,

and

quite another to have been questioned by residents as to a potential

violation and ignore the issue.

At

one point in response

to a

com-

plaint issued,

Respondent answered that his equipment was state-ap-

proved

(R.

96).

Nothing could be further from the truth.

The

question as to

the

amount of the monetary penalty im-

posed in relation to the ability of Respondent

to pay was raised

during

the

Board~sdiscussion on this matter.

In response to this,

this dissenting opinion simply states the facts.

A)

No evidence was elicited as to Respondent~s

financial status.

B)

Sums of money

were

expended to hire

a pro-

fessional photographer in Respondent~s

be-

half

(approximately $350)

C)

Sums

of money

were

expended to hire

a con-

sulting firm to conduct an

“odor survey”

in

Respondent

s behalf.

In

regards

to

(B)

and

(C),

Respondent certainly has the pre-

regative

of

generating

whatever

evidence

he

deems

necessary

to

fully

present

his

case.

However,

it

is

suggested

that

the

willingness

to

expend the sums involved

in

Steps

(~)

and

(C)

would

indicate that

Respondent could also expend sums on air pollution abatement,

and

should not be granted a reduced penalty for unknown financial

hard~

ship.

Perhaps the most disheartening factor involved in this act-

ion was the thread of lack of concern, or even worse, contempt for

the witnesses called, and the surrounding areas,

as displayed by

the Respondent.

I.

Photographic evidence on the part of Respondent: There

is no dispute that Respondent~sfacilities

are located in an area

which allows manufacturing.

If proof of this was required,

a sim-

ple copy of zoning regulations would have sufficed.

This causes

one to ponder the rationale of presenting approximately

55 photo-

graphs to portray the “character of the neighborhood.’

(R.177.)

9

—

542

---

—3—

It

is

felt

that

this

subject

was

too

lightly

covered

in

the

Opinion

and

Order

of

the

Board.

Testimony

shows

that

there

are

two separate sets

of

railroad tracks in the area,

and fully 18 of

the approximately 55 photographs show railroad tracks

(R. 219-220).

It

is

clear

that

the

intent is to show

a rundown neighborhood.

How-

ever,

whether

the

neighborhood

is

rundown

or

the

most

fashionable9

the

protection

afforded

to

its

residents

is

equal.

There

is

nothing

in

Section

9

(a)

which

ecuates

protection

from

air

ooiluticn

with

individual

affluence~

11.

No

detailed

discussion

on

the

following

point

will

ha

given.

Suttice

it

to

say

that

there

is

culte

a

d~f:erence

between

counsel

s

pursuing

his

client~s

interests

vigorously

and

bullying

and

badgering

witnesses,

The

attitude

displayed

during

cross~exarn-

ination

by

Respondent

counsel

shows

a

complete

disregard

for

the

dignity

of

the

individual.

In

past

cases

the

Board

has

found

that

odorous

emissions

have

been

found

to

warrant

significant

fines

(John

Juergensmeyer

VS.

Pox

Valley

Crease

Blending

Company,

POB

7O~35, Environmental

Pro—

t000iOfl

Agency

vs.

Southern

Illinois

Asphalt

company,

PCB

71—li)

Because

of

the

above,

it

is

felt

that

the

penalty

imposed

in

this

action

cas

below

the

amount

warranted.

‘

//

~

.Siclriey

N.

Marder

Board

Member

Jacoh

I).

Dumelle,

Chairman

I,

Christan

L. Moffett,

Clerk

of

the

Illinois Pollution Control

Board, hereby certify the

above

Dissenting

Opinion

by

Sidney M.

Marder

and

Jacob

D. Dumeile, was submitted on the

~

day

of

October,

1973.

Illinois

Po

9— 543

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