Appeal from the Appellate Court for the First District; heard
in that court on petition for review of an order of the Pollution
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
On November 11, 1971, the Illinois Pollution Control Board (Board) denied a petition filed by the Metropolitan Sanitary District of Greater Chicago (District) for a variance of the requirements of the Board's rules and regulations. The variance was sought as to the District's Streamwood Sewage Treatment Plant (Streamwood). On March 24, 1972, the District filed another petition for variance with the Board. On August 3, 1972, the Environmental Protection Agency (Agency) filed with the Board a complaint charging the District with violating regulations and standards adopted by the Board, thereby causing water pollution in violation of the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1012(a).) The complaint charges that the violations occurred during a period beginning July 1, 1970, and continuing to the date of the complaint "including but not limited to November 29, 1971, December 15, 1971, January 19, 1972, and February 2, 1972." The complaint also specifically charged that on September 24, and September 27, 1971, the District had, by discharging its effluent, caused the death of various forms of aquatic life.
On May 17, 1972, the District filed an amended petition for variance. The petitions for variance and the complaint charging the violations were consolidated for hearing. Following the hearing the Board entered an order granting the variance requested and also imposing fines totaling $6,000. The appellate court affirmed (25 Ill. App.3d 152), and we granted leave to appeal.
The District first argues that the Board's order for granting a variance was conditioned upon the payment of a money penalty and is therefore invalid. The order entered reads:
"1. The Metropolitan Sanitary District of Greater Chicago (District) shall within 35 days after receipt of this order pay to the State of Illinois the following sums as penalties for the violations indicated:
a. $1,000 for violation of stream standards SWB 14 respecting dissolved oxygen during replacement of a trickling filter seal;
b. $5,000 for water pollution and violation of SWB 14 nuisance standards for effluent and stream quality.
7. The District is hereby granted a variance until June 29, 1973, from Rule 404 of Chapter 3 of the Rules and Regulations of the Pollution Control Board, on condition that the other provisions of this order are complied with. (Emphasis supplied.)"
The District, in support of its position, cites Citizens Utilities Co. v. Pollution Control Board, 9 Ill. App.3d 158, and Molex, Inc. v. Pollution Control Board, 9 Ill. App.3d 1032. In those cases the petition for a variance acknowledged that if it were allowed certain violations of pollution standards would occur. The Board granted the variance and imposed the penalty for the pollution that would result during the time that the variance was in effect. The orders criticized in those cases were, in effect, permitting pollution for a price.
A different situation prevails in the case now before us. This is a consolidated proceeding involving not only a request for a variance but also an enforcement proceeding as to past acts of pollution. In this case it is the penalty imposed that is being attacked. We view the penalties not as a price for polluting during the term of the variance, but as a penalty for past acts which could properly be imposed in the consolidated hearing. We are not here concerned with the validity of the conditional nature of the variance, for there has been no attempt to revoke it for nonpayment of the penalties. In fact, the variance has expired by its own terms, the termination date as stated in the order being June 30, 1973.
The next issue involves the propriety of the penalties imposed. The $1,000 penalty relates to pollution that was caused while a trickling filter seal was being replaced. On March 5, 1971, the Environmental Protection Agency ordered the District to replace the mercury seal in its trickling filter. In compliance with this order the District undertook to install a new seal. The work was commenced on September 22, 1971, and completed on September 24. While the work was in progress almost 50% of all effluent was being bypassed directly into the stream with only primary treatment.
The chief of maintenance and operations for the District testified that while the seal was being replaced the filter had to be shut down. Alternate means of treating the effluent were impractical. The effluent could not have been stored in the lagoon since there was no way to pump it back into the plant, odors would arise from the lagoon, and if there were rain while the overflow was in the lagoon sewage could be backed into individual homes. The Agency presented no evidence to contradict this testimony or to show that other procedures were available to the District to prevent the pollution complained of. The Board in its order acknowledged that the Agency failed to rebut this testimony. However, it concluded that the fact that no such alternate means were available at the Streamwood Plant is no defense.
The Environmental Protection Act provides (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1031(c)) that in hearings before the Board the burden is on the Agency to show that the "respondent has caused or threatened to cause air or water pollution" and that if such proof has been made the burden shall be on the respondent to show that compliance with the Board's regulations would impose an arbitrary or unreasonable hardship. It is not questioned in this case that the District did cause pollution during the installation of the new seal in its trickling filter. However, it is not enough for the Board to simply find that the District caused the pollution complained of. The Act further requires that in making its orders and determinations the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the "emissions, discharges or deposits involved." The facts and circumstances listed which the Act directs the Board to consider are "the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution." Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1033(c)(iv).
The record contains no evidence to rebut the contention of the District that there was no practical or economically feasible way to eliminate the pollution while complying with the order of ...