APPEAL from the Pollution Control Board.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 23, 1974.
This is a petition for review of an order of the Pollution Control Board (PCB) finding petitioner, George E. Hoffman & Sons, Inc., guilty of violation of the Environmental Protection Act of 1970 pursuant to a complaint filed by the Environmental Protection Agency (EPA). The Board assessed a penalty of $4,000 against petitioner resulting in this petition for review of the penalty assessed and the underlying findings of the Board. The complaint related to Hoffman's operation of its mobile asphalt plant at two locations, one at Little America, Fulton County, and one at Princeville, Peoria County, Illinois during the years 1970 and 1971.
On this appeal petitioner contends: one, the Board lost jurisdiction to consider the complaint filed by the EPA because the controversy was not set for hearing within 60 days after its filing as required by the rules of the PCB; two, the authority of the PCB to assess penalties for violations of the Act is unconstitutional because in conflict with the separation of powers between the legislative, executive and judicial branches of the State government required by the constitution; three, the finding of the Board regarding petitioner's wrongful discharge of particulates into the air from its asphalt plant is contrary to the evidence; and four, the penalty of $4,000 is unreasonable and excessive.
Procedural Rule 307(a) of the PCB provides in part:
"307 Notice of Hearing. (a) The Hearing Officer after appropriate consultation with the parties, shall set a time and place for hearing which date shall be not later than 60 days after the filing of the complaint. * * *"
Procedural Rule 307(c) of the PCB states:
"(c) Failure to comply with the notice requirements of this section may not be used as defense to an enforcement action, but any person to whom notice should have been given may have the hearing postponed if prejudice is shown, upon motion to the Hearing Officer."
The EPA filed its complaint against petitioner on October 1, 1971, and the notice of hearing date was set by the hearing officer on December 6, 1971, more than 60 days subsequent to the filing of the complaint. Petitioner moved to dismiss the complaint because of the lack of timely notice but the motion was denied by the PCB.
• 1 Although the language of Procedural Rule 307(a) appears to be mandatory, no particular consequences are specified for failure to set the case for hearing within the required time and, even though we believe the rules of the Board should be complied with, we agree the failure ought not to result in a dismissal of the complaint. The language of Procedural Rule 307(c), by necessary implication, indicates the hearing date is not jurisdictional since, where proper notice is not given, the hearing is continued rather than resulting in a dismissal of the complaint. We hold the failure to give notice did not result in the loss of jurisdiction by the Board to consider the merits of the complaint.
Petitioner's next contention that the power vested in the PCB to assess penalties is unconstitutional raises a question which was previously decided by this court adversely to the claim of petitioner in Ford v. Environmental Protection Agency, 9 Ill. App.3d 711, 292 N.E.2d 540. We adhere to the rule in the Ford case even though the same result has not been reached by other panels of the Appellate Court. (See City of Waukegan v. Environmental Protection Agency, 11 Ill. App.3d 189, 296 N.E.2d 102.) However, resolution of this issue is presently pending before the Illinois Supreme Court and the ultimate result in this case on this issue will depend upon the future disposition by the Illinois Supreme Court. We believe no useful purpose would be served by any further discussion of this issue.
This brings us to the major issue presented on this appeal. Is the finding of the PCB that the defendant violated Rule 3-3.111 (process weight limitations) supported by sufficient evidence?
Three of the charges alleged that the petitioner had failed to secure proper permits. At the hearing before the PCB these three charges were admitted by petitioner and no questions are raised concerning these charges on this appeal. Petitioner did, however, before the Board, attempt to mitigate the degree of culpability which should be assessed against its failure to secure permits. After the hearings were concluded, the PCB found that one of the remaining charges relating to air pollution while the plant was being operated at Princeville, Illinois had not been proven.
However, the Board did find petitioner guilty of the remaining charge. This charge was that since July 1, 1970, it operated its plant in violation of the process weight limitations of Rule 3-3.111. It is this charge of violation and the court's finding thereon that is the principal subject of this appeal, the ...