ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    September
    26,
    1972
    ENVIRONMENTAL
    PROTECTION
    AGENCY
    )
    )
    )
    v.
    )
    PCB
    71—243
    )
    )
    HARRY A
    CARLSON
    )
    DISSENTING
    OPINION
    (by
    Mr.
    Dumelle):
    My
    main
    reason
    in
    dissenting.
    in
    this
    case
    is
    my belief
    that
    the
    penalty
    Imposed
    by
    the
    Board
    ($2,500)
    was
    much
    too
    low.
    I would have
    imposed
    a
    penalty
    of
    at least $15,000.
    I believe these are four
    conditions
    that
    should be met
    when
    large penalties are levied after findings of
    guilty
    are
    made.
    These
    are:
    1.
    The
    injury
    to
    the
    public
    and
    to
    the
    environment
    must
    be
    severe.
    2
    The
    party
    being
    penalized
    must
    be
    reasonably
    ccmpe-
    tent
    so
    that
    a
    presumption
    of
    foreknowledge
    of
    re-
    gulations
    can
    be
    made.
    3.
    The
    party
    found
    guilty
    of polluting should not make
    money
    by
    his
    nisdeeds.
    4.
    The
    party
    being
    judged
    should be
    able
    to afford the
    penalty.
    The Oct. 16, 1971 record
    shows
    with great clarity the
    extent of the injury to the public from Carlion’s landfill
    operation.
    The Village President of the Village of Worth, Mr.
    Walter Kerkstra,stated
    Like a couple of other witnesses prior,
    I have noticed
    the obnoxious odors, for one thing.
    I have also witnessed-—
    I
    never
    seen
    a
    Live one, but I have seen dea& rats on
    the road in that area.
    I also have noticed the lack of
    cover
    on the landfill operation from time to
    time
    and,
    as
    a
    result
    of
    the
    lack
    of
    cover,
    many
    papers and de-
    bris, various kinds of debris, have blown into the forest
    preserve area to the east and north.
    (R.
    64).
    Mrs. Juanita
    Altman,
    a village trustee of Worth, stated
    Well, when I have gone by I have seen papers on the road,
    I have seen a messy situation with mud.
    I have also
    noticed rats.
    And it stinks to high heaven.
    And this
    5—453

    —2—
    to me
    is pollution,
    (R.
    51).
    Mr. Gilbert Dobslaw verified odors
    and
    mud
    on the read
    (R.
    59)
    .
    Village Trustee John Featherstone
    testified
    as to
    odors,
    debris,
    papers and
    live rats from
    the Carison operation
    (R.
    69)
    .
    Another trustee,
    Mr. Donald Christine,
    testified
    as
    to dirt and mud
    on
    the highway which was
    “actually hazardous”
    in rainy weather.
    He also verified
    the odors.
    (R.
    73)
    .
    Mrs.
    Patricia Cleary
    told of her asthmatic
    child
    and how she would
    have
    to give him
    a breathlyzer when going past
    the landfill
    (R.
    76,
    78).
    And
    so, beyond
    a shadow of
    a doubt,
    Carlson’s failure
    to
    operate his landfill properly caused odors,
    rats,
    litter,
    traffic
    hazards and health effects
    --
    certainly severe enough effects
    to warrant
    a
    large penalty.
    The next element in assessing
    a large penalty
    is reasonable
    competence.
    One does not penalize an incompetent.
    Mr. Carlson
    operates
    a landfill which serves 200,000 persons according
    to
    the stipulation,
    and
    so we can assume his competence
    to
    manage that large
    an enterprise.
    The penalty should be such
    that,
    if possible under law,
    no financial gain ought he made by violating
    the law.
    Some
    pain but no gain ought
    to be
    the
    standard
    by which
    a penalty
    is
    set.
    See
    the dissenting opinion
    in GAF Corp.
    v. FPA,
    (PCR 71-11,
    Oct.
    3,
    1972)
    for
    a discussion
    of
    “savings—by—delay”
    (p.
    3)
    Carison has admitted
    in the
    stipulation
    to open dumping
    and.
    failure to place daily cover
    on eight separate occasions
    (p.
    3)
    A landfill
    in Illinois
    is required
    to place six
    inch layers
    of dirt over two
    foot thick layers
    of refuse.
    Thus
    20
    of
    the
    volume of
    a
    landfill as
    a minimum will
    be taken up by cover.
    Add
    to this extra cover required
    by
    the final dressing
    (two
    feet)
    and the proportion
    rises
    still further
    to perhaps 25
    or
    30.
    The Carlson landfill had
    an original volume of 1,600,000
    cu.
    yds.
    (computed from
    the dimensions on p.
    1 as given in
    the
    July
    1972
    “Impact Statement”hy Roy
    F.
    Weston,
    Inc.
    attached
    to
    the stipulation).
    Assuminq
    the pit was
    two-thirds full at
    the
    time
    the complaint was filed on Aug.
    18,
    1971 then some 1,070,000
    cu.
    yds.
    of material might have been placed
    in
    it to that time.
    If all cover had been omitted
    to that time,
    some
    260,000 Cu.
    yds.
    of volume might have been saved.
    Space in
    a
    landfill
    is
    charged for at about $0.80 per cu.
    yd.
    Cover material
    itself,
    if not available
    at
    the
    site,
    might cost
    $1.00
    a
    cu.
    yard.
    In
    toto,
    savings
    in costs
    and
    increases
    in revenues anproachinq
    $400,000 were possib1e~
    In this case,
    since we do not know
    the
    extent of omitted cover
    (except as we judge by
    the vehemence and
    sincerity
    of the witnesses mentioned
    earlier)
    or
    the volume
    already filled,
    the $400,000
    ficjure can not be certified.
    But
    the example does
    illustrate
    that
    in landfill operation
    it might
    5
    454

    —3—
    pay well
    not
    to place cover material as req~aired.
    Lastly,
    in my outline at the beqinning,
    I
    stated that
    the party being penalized ought to be
    ab,e
    to pay.
    Since poverty
    has
    not been pled in this case we can assume that it is not
    an issue.
    In one of the Board’s earliest landfill cases
    (EPA v.
    Sauget, 71—29,
    May
    26,
    1971,
    1 PCB 636)
    I dissented in a finding
    which levied only a $1,000 penalty upon a fufltime landfill
    operator who had been in the business for
    some
    19 years.
    I
    said then
    The Board should look at the reasons for
    a penalty.
    If the penalty is to deter,
    then
    it should be a substantial one when
    guilt is shown and economic ability to
    pay is present.
    Otherwise
    the
    Board’s
    penalties will become “licenses to pollute”.
    In this case,
    I agree almost entirely with the reasoning
    and findings in
    the
    majority opinion except as to the penalty.
    The majority opinion (second paragraph,
    p.
    6) implies that the
    Board had no choice in this case but to accept or reject the
    penalty as an integral part of the stipulation
    (“.
    .
    .
    we
    are
    not disposed to set it aside
    nor
    to conduct further hearings
    on the matter of penalty”).
    This is not correct as the latest
    stipulation dated Sept.
    12, 1972 in paragraph 12(e) clearly
    leaves the penalty to be determined by the Board.
    I feel the
    majority has placed undue weight upon Carlson’s $76,000 program
    of correction
    and
    his abatement of the problems he
    has
    caused
    by not following the law in the first palce.
    By his admitted
    flouting of the regulations he imposed a burden of nauseating
    odors, rats,
    litter, traffic hazards and air
    and
    water pollution
    upon the environment and the public.
    The environment is not
    his to pollute--it belongs to the public.
    The penalty should have been more than a slap on
    the
    wrist.
    4em’r~.
    01L
    I, Christan Moffett, Clerk of the Pollution Control Board,
    hereby certify the a
    ye Disèenting Opinion was submitted on
    the
    /1”
    day of
    ______________,
    1972.
    °‘~~‘
    _
    5—455

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