ILLINOIS POLLUTION CONTROL BOARD

October

3,

1972

ENVIRONMENTAL PROTECTION AGENCY

v.

)

72—50

GAF CORPORATION

Opinion

of the Board

(by Mr.

Currie)

The Agency’s complaint charged GAF with delays

in the

implementation of its Air Contaminant Emission Reduction

Program, which required the installation of fume incineration

systems on asphalt saturators and oxidizing stills at the

company’s Joliet roofing plant by May 1972.

The result,

it was alleged, was emissions in excess of regulation limits

(Rules and Regulations Governing the Control of Air Pollution,

Rule

3-3.111)

and interference with the neighbors’ enjoy-

ment of

their property, constituting air pollution under

~ 9(a)

of the Environmental Protection Act.

On September

25,

1972, we received ~ stipulation and

proposed settlement from the parties.

The stipulation re-

cited the Agency~scontentions that allowable particulate

emissions

from the oxidizing stills were 20.66 pounds per

hour and actual emissions

43.5, and both saturators and

stills had “created a nuisance for the community

by emitting asphalt odors which citizens have found

objectionable and by emitting copious amounts of particu-

late matter which interfere with normal lives of the local

citizens.”

GAF

denied that it committed any violation.

It

is further recited

that

GAF

is actively working to

install the necessary fume incineration systems, which

“are the most efficient asphalt fume abatement equipment

presently available,” and which are “contemplated by GAF

to abate

the nuisance

.

*

.

and to bring

the

particulate

emissions from the oxidizing stills into compliance with

all presently enacted state air pollution regulations”--

presumably including the newly tightened particulate re-

gulations we adopted in April of this year

for future corn—

pliance

(PCB Re~s.,Ch.

2).

The stipulation states that

the

“program is now well under way and proceeding according

to

the

new

schedule.”

The company estimates the cost of

control

eguiprnerit

at $1,555,802.

5

—

553

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—2—

The proposed settlement is that GAF will complete the

control installation and comply with all applicable laws

and regulations by January 31, l973~will post a bond in the

amount of the cost of the program; will file monthly pro-

gress reports; will be permitted to operate under present

conditions until the new deadline;

and will pay a penalty

of $15,000

for its alleged delays.

This agreement is contingent upon the Board’s approval

of

a second settlement relating to GAF’s petition for judicial

review of our penalty order

in #71-11,

a water-pollution case

involving the same plant;

the water settlement was approved

by

the Board on September

26,

1972, for reasons stated in

a separate opinion adopted today.

GAF Corp.

v.

EPA,

#71-il,

5 PCB

—,

—

(Sept.

26 and Oct.

3,

1972)

Board procedure in evaluating proposed settlements is

detailed in our procedural Rule 333

(PCB Regs,

Ch.

1, Rule

333)

and in EPA v. City of Marion,

#71—25,

1 PCB 591

(May 12,

1971)

,

in which we have made clear that, because of the

Board’s role as an affirmative instrument for effectuating

the policy of the Act, Board approval of the merits

is recuisite

for any settlement of a pending case.

See also the dis-

cussion in GAF Corp.

v.

EPA,

#71-11,

5 PCB

,

decided to~-

day.

As we said in the Marion case,

the statutory policy o~

public participation in pollution cases requires that we

make every reasonable effort to ascertain the views of the

public upon settlements proposed by the Agency and the res~

pondent.

For the Agency is bdt the guardian of the public

interest;

it is the public itself that must put up with the

results of our decisions.

Consequently,

as we said in

Iowa-Illinois Gas

& Electric Co., #72-216,

5 PCB

(August 22,

1972)

,

—

It has been our preferred procedure,

even where a

stipulation is reached on all factual issues, and in-

deed even when the parties agree on a proposed dis-

position,

to require that the stipulation and proposal

be presented publicly so that affected citizens have

a meaningful opportunity to know the terms and to ex-

press

their views.

But we have not felt ourselves bound to hold a hearing

on a proposed settlement when strong countervailing con-

siderations indicate we should not.

In EPA v. Russell,

Burdsail

& Ward Bolt

& Nut Co., #71-369,

4 PCB 701

(June

27,

1972), the Board noted the desirability of a

settlement hearing hut decided the case without

a hearing

transcript, evidently believing that the completeness

of

the stipulation and the large amount of the agreed penalty

(over $50,000)

gave considerable assurance that the public

interest

would

be

protected,

in light of the further

delays

that

would

have

beee

encountered

had

the

Board

at

that

date

---

—3—

scheduled

a settlement hearing.

In Howe

v. Commonwealth

Edison Co.,

#71—333, 5 PCB

(Sept.

6,

1972), the record

reveals

that the parties’ i~T~ia1agreement to settle was

retracted upon notification that

a hearing on the proposal

would be necessary;

the Board after examining the facts and the

proposed remedy

(a $2500 penalty for an accidental spillage

of 150 gallons

of oil into

the Mississippi River) concluded

that “no useful purpose would be served by insisting upon

a hearing

on the facts of this particular proceeding.”

Our

policy,

therefore,

is to hold settlement hearings unless

extraordinary circumstances indicate otherwise.

The present case

is one of such extraordinary circum-

stances.

We received both this stipulation and that in

the GAF water case on September 25, and each depended upon

approval of the other.

Oral argument in the water case be-

fore the Appellate Court was set for October

3,

and we were

informed that postponement

of our decision would not only

impose

a considerable work burden upon attorneys in pre-

paring for oral argument but would also entail

a significant

risk that our approval of the water settlement might come

too late

to forestall

a court decision onthemerits.

In

other words,

if we did not approve both settlements before

October

3 we might well lose the opportunity for settle-

ment

of

the water case altogether.

The desirability of accepting the water settlement is

spelled out in our opinion in that case,

adopted today.

To

have insisted upon

a public hearing on the air settlement,

with

the requisite 21-days’ notice, would have put an end to

the water

settlement.

Given this important adverse con-

sequence of postponing the air decision,

and given our

evaluation of the air settlement itself, we concluded that

we should proceed without a settlement hearing,

and the

air settlement was

approved by

a 4-1 vote,

Mr. Dumelle

dissenting,

on September

26,

for reasons that follow.

For purposes of passing upon the adequacy of the

oroposal,

we assume that the Agency’s allegations are true

and that the Agency would prove them if a hearing on the

rierits were held.

These allegatibns would establish that

~AF has unjustifiably delayed by eight months the completion

ut

necessary pollution control facilities.

The Agency agrees

that the

equipment

that

is

being installed is the best

available,

and

it does not contend

that,

given present

facts

the installation could

be

completed any faster than

the coenanv

has

agreed to complete it.

Shutting down the

eLant, ~or

reasons

civen in our

first

opinion in the water

case

(OAF Corp.

v.

EPA,

#71—11,

1

PCB

481

(April

19,

1971)),

does not aepear a reasonable alternative.

We are convinced

the abatement program, seen from today’s vantage point,

is

an exec~pLaryone, and it

is

to be secured by an adequate bond.

5

—

555

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—4—

The sole remaining question is the adequacy of the

$15,000 penalty

for the eight months’

delay.

As we said in

the companion GAF water case,

the setting of

a money

penalty is not an exact science.

The penalty agreed upon

here is in the same ball park as penalties for comparable

delays

in

a

number

of

other

significant

air—pollution

cases.

See,

e.g., Marquette Cement Mfg.

Co.

v. EPA,

#71-23,

1 PCB 145

(Jan.

6,

1971)

($10,000, which the opinion writer thought

low,

for over a year’s delay in controlling a large cement

plant); Molex,

Inc.

v.

EPA, #71-200,

3 PCB 341(January

6,

1972)

($10,000 for a two-to-three-year delay in controlling

substantial and offensive emissions from a plastics factory)

Agrico Chemicals Co. v.

EPA, #71—211,

3 PCB 319

(Dec.

21,

1971)

(10,000

for a year-and—a-half delay in controlling

particulate emissions from

a fertilizer plant).

See also

Spartan Printing Co.

v.

EPA,

#71-19,

2 PCB 19

(June

23,

1971)

($10,000 for an 18—month delay

in abating substantial water

pollution

violations

from

a

large

printing

plant).

Cases

resulting

in

substantially

higher

penalties,

by

and

large,

have

involved

the

failure

to

take

any affirmative action

to abate long-standing and serious nuisances down to the

date of the complaint.1

See Hemmerich v. Lloyd A. Fry

Roofing Co., #71—33,

2 PCB 581

(Oct.

14,

1971) ($50,000)

EPA

V.

Incinerator,

Inc.,

#71-69,

2 PCB 505

(September

30,

1971) ($25,000)

.

We conclude that,

in view of the relatively

brief delay in the present case,

and the absence of Agency

insistence that the emissions imposed an intolerable burden

on the

community,

the agreed penalty of $15,000

is a sub-

stantial one that approximates what we would in all likeli-

hood impose upon proof of all the violations alleged.

In the interest of avoiding unnecessary litigation, we

accept reasonable settlements agreed

to by both parties.

See EPA v. Granite City Steel,

#70-34,

4 PCB 457

(May

3,

1972)

*

On these grounds the settlement was approved September

26.

Mr. Dumelle dissents,

1.

The

special

circumstances surrounding the $149,000

penalty in the GAF water case,

#71—li, and our acceptance

of

a $50,000 settlement, are described

in today’s

opinion

in

that

case.

I, Christan Moffett, Clerk of the Pollution Control Board,

certify that the Board adopted the above Opinion this______

day of October,

1972,

by

a vote of__________

5

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556