ILLINOIS

POLLUTION

CONTROL

BOARD

October

17,

1972

ENVIRONMENTAL

PROTECTION

AGENCY

v.

)

PCB

72-206

THE

RILEY

COMPANY

DISSENTING

OPINION

(by Mr.

Dumelle)

My

reason

for

dissenting

in this

case

is that

I feel

that

a nominal

penalty,

perhaps

$200,

should

have

been assessed.

The

stipulation

shows

that

the

incinerator

emitted

67. 3

more

particulates

than the

standard

set

by

our

predecessor

board,

the

Illinois

Air

Pollution

Control

Board.

This

violation

is

admitted

to have

occurred

for

18

months

and

20

days.

The

arguments

against

a penalty

as

listed

in the

majority

opinion

are;

(a)

notices

of possible

violation

were

not

received

until

January

11

and

January

12

of

1972;

(b) a penalty

of

$50

and costs

has

been

paid;

and (c)

the

incinerator

has

been

shut

down.

Since

the

majority

did

not. see

fit

to

dismiss

the

case

by

virtue

of

the

Cook

County

Environmental

Control

Bureau

action

and penalty

the

argument

of

double jeoparty

apparently

does

not

hold.

The

closing

down

of the incinerator

is

only

the

company~sprogram

of compliance

and we

should

not

reward,

by

non-penalty,

obedience

to the

law

at

a late

date.

And finally,

a firm

is

presumed

to

know

the

air

pollution

control

regulations

and notices

of

violation

are

not

required

as

a

condition

precedent

to successful

prosecution.

The

Board

has

found the

Riley

Company

guilty

and

I

agree

with that

finding.

The

cost

of a

hearing

officer,

legal

notices,

Agency

and. Attorney

General

staff

time,

and the

transcript

should be

borne

by the

guilty

party

absent

a

showing

of poverty

(see

concurring

opinion

in

EPA

v.

J.

C.

Dill,

PCB

72-26 5,

October

31,

1972).

There

is

no

showing

of poverty

here

and

I would have~relieved the burden

on

the taxpayers

of Illinois

to prosecute

this

case

by levying

a penalty

of

$200.

/

Jacob

D

Dumelle

/

/

Board

Member

(~~7

5

—