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Metropolitan Sanitary Dist. v. On-cor Foods

OPINION FILED FEBRUARY 13, 1976.

THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, PLAINTIFF-APPELLEE,

v.

ON-COR FROZEN FOODS, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. DURHAM, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action to recover penalties and interest in the amount of $9,294 from defendant for violation of its Industrial Waste Surcharge Ordinance. Defendant is in the business of operating a food processing plant in Chicago. The complaint alleged that defendant was liable for such penalties and interest because it had failed to remit payment for treatment of its industrial wastes within the time limits prescribed by the ordinance. In a verified answer defendant denied any liability and alleged that (1) plaintiff did not have the power to enact the penalty provisions of the ordinance, (2) the penalty provisions did not apply because defendant had filed the statements and remitted payment, albeit in an untimely manner and (3) the penalty and interest provisions of the ordinance are so excessive as to be unreasonable. Plaintiff moved for summary judgment which was granted by the court in the amount of $9,200.94. *fn1 The grounds which are the basis of defendant's appeal are those which it raised in its verified answer.

The statutes of this state allow industrial concerns to discharge refuse in excess of 3,650,000 gallons a year into plaintiff's sewers and works only upon compliance with such reasonable terms and conditions as plaintiff is empowered to make. These terms and conditions may include "a requirement for the payment of compensation to [plaintiff] for the conveying, pumping, treatment and disposal of such excess." See Ill. Rev. Stat. 1973, ch. 42, par. 326a(a) and (b). *fn2

On December 10, 1970, pursuant to this statutory grant of authority, plaintiff adopted the Industrial Waste Surcharge Ordinance for the purpose of making "reasonable charge for the cost of handling and treating industrial wastes in excess of 3,650,000 gallons in any 12 month period from an industrial plant. * * *" (Metropolitan Sanitary District of Greater Chicago, Industrial Waste Surcharge Ordinance, Section 1, December 10, 1970.) The ordinance imposes a duty on industrial plants subject to the surcharge to install sampling chambers equipped with standardized monitoring equipment. The owners of such plants are required to submit monthly to plaintiff certified statements detailing the quantities of industrial wastes it discharges into plaintiff's sewers and works "not later than the last day of the following month." (Industrial Waste Surcharge Ordinance, Section 5.) Together with this certified statement, owners of industrial plants are required to remit the amount of surcharge due. Section 7 of the ordinance provides procedures to be utilized in the event of irregularities are found in an owner's statement:

"(b) Payments:

The owner of each industrial plant subject to surcharge shall remit monthly to the Sanitary District, the amount of the surcharge due together with its certified statement.

Should inspection by the Sanitary District reveal that any statement filed by an owner does not accurately represent actual conditions, the Sanitary District shall redetermine the surcharge due and bill the owner for any deficiency together with interest as herein provided. Said bill shall be paid within ten (10) days after receipt thereof by the owner.

(c) Interest:

Interest, at the rate of one percent per month or any fraction thereof, shall be added to any overdue surcharge payments. Such interest shall accrue and continue to accrue from the date the owner's remittance was due until all overdue surcharges and interest are paid."

Section 8 of the ordinance specifies penalties to be imposed in the event there is a failure by an owner subject to the surcharge to file its monthly statement:

"Section 8. Penalties

Should the owner of any industrial plant subject to surcharge fail to file its monthly certified statement as herein required, the Sanitary District will estimate the amount of the surcharge due and bill the owner for such overdue surcharge together with interest and penalties as provided herein. Said bill shall be paid within ten (10) days after receipt thereof by the owner.

The penalty for failure to file a monthly certified statement shall be five percent per month or any fraction thereof, of such unpaid surcharge. Such penalty shall accrue for each month from the date any remittance was due, until paid. In addition to such penalty, interest shall also be assessed as provided under Section 7(c), except that no interest shall accrue on any unpaid penalty."

In the instant case defendant filed its monthly certified statements for the period from March 1, 1971, through December 31, 1973, on January 17, 1974, and remitted the sum of $8,088 as the amount of surcharge it owed. Plaintiff brought this action alleging that due to its late ...


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