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Harris-hub Co. v. Pollution Control Bd.

OPINION FILED JULY 7, 1977.

HARRIS-HUB COMPANY, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

In an administrative proceeding brought by the Illinois Environmental Protection Agency (EPA) before the Illinois Pollution Control Board (PCB), Harris-Hub Company, Inc. (Harris), was assessed a civil penalty of $500 for its failure to obtain an operating permit. Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1009(b).

Harris appeals, contending the PCB erred in assessing a civil penalty where: (1) the EPA assessment of a penalty was not an aid in enforcement of the PCB Air Pollution Control Regulations; (2) the EPA failed to allow Harris an opportunity for voluntary compliance; and (3) the EPA failed to prove Harris was required to obtain an operating permit. As a separate procedural issue, Harris contends the PCB erred in refusing to allow Harris leave to file its written closing argument within a reasonable time.

We agree with the contentions of Harris and reverse the PCB decision.

Harris is a manufacturer of steel bed frames, rails and allied metal bedding products, and has been so engaged for the past twenty years. Each year, Harris uses in excess of 5,000 gallons of paint in connection with its manufacturing processes.

On November 7, 1974, a representative of the EPA inspected the Harris plant and the operations conducted there. The inspector reported that Harris was "in compliance" with Rule 205(f) of the PCB Air Pollution Control Regulations governing emission of organic or photochemically reactive material discharged from paints and solvents. The inspector further noted that there was no odor emanating from the Harris plant and except for not having obtained a permit from EPA, Harris was in compliance with the rules and regulations regarding air pollution control.

On November 12, 1974, the EPA wrote Harris, stating in part as follows:

"* * * investigation revealed the following circumstances which may constitute violations of the Environmental Protection Act and related Regulations:

Rule 103(b)(2) — Failure to apply for operating permits."

The letter enclosed certain permit application forms and requested Harris to advise of its intentions to comply with Rule 103. Thereafter, Harris asserts that it contacted the inspector regarding the complexity of the permit application forms and was advised that the EPA offered a two-day seminar on how to complete the forms.

On February 4, 1975, Harris wrote the EPA and submitted a "letter-application" for a permit and stated that it did not have the technical ability to complete the forms fully. On March 3, 1975, the EPA wrote Harris that the February 4 "letter-application" was not acceptable since it lacked the required information and "it is the desire of the EPA to assist you in preparing an acceptable permit application." The EPA letter did not indicate that enforcement proceedings would be instituted unless Harris immediately submitted a revised permit application form. In early March 1975, Harris contacted and later retained an engineering firm to process and complete the permit application form consisting of 76 pages.

On April 2, 1975, without prior notice to Harris, the EPA complaint seeking a civil penalty sanction for failure to have an operating permit was filed by the EPA and on April 7, 1975, Harris was served by certified mail. The permit application form was completed and submitted to the EPA on April 18, 1975. After additional items of information were submitted pursuant to the EPA request, on June 19, 1975, the EPA issued Harris an operating permit.

Initially, Harris contends that its dealings with the EPA in resolving the problem of its acquiring the operating permit have been conducted in good faith. Harris points out that its actions have always indicated a sensitivity to and a concern for environmental matters. Long before the filing of the complaint by the EPA, Harris, in order to reduce polluting emissions, had changed its plant's heating system from coal to oil and then from oil to gas, even though a gas operation was more expensive. Additionally, Harris installed an afterburner on its incinerator to control smoke emissions, and when that did not achieve complete elimination of emissions it stopped burning refuse entirely. Also, to reduce emissions further, Harris embarked on a program to convert all of its forklift trucks from gas to electric power and to similarly convert its diesel-powered truck tractors. Accordingly, Harris maintains that since it has acted in good faith throughout and has not been a polluter, no penalty should be imposed since the imposition of a penalty would not aid in the enforcement of the Environmental Protection Act. (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1002(b); City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 313 N.E.2d 161.) We agree.

• 1 Imposition of penalties under the Environmental Protection Act is not to be invoked for punishment but to aid enforcement of the Act. (Metropolitan Sanitary District v. Pollution Control Board (1975), 62 Ill.2d 38, 338 N.E.2d 392; Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill.2d 204, 326 N.E.2d 406; May v. Pollution Control Board (1976), 35 Ill. App.3d 930, 342 N.E.2d 784; City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 313 N.E.2d 161; CPC International, Inc. v. Pollution Control Board (1974) 24 Ill. App.3d 203, 321 N.E.2d 58.) Also, violation of a provision of the Act does not, in and of itself, necessarily warrant the sanction of a fine. In fact, it must be shown that the imposition of a fine in the particular case ...


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