Petition for review of order of Pollution Control Board.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
The Illinois Environmental Protection Agency (EPA) filed a complaint before the Pollution Control Board (Board) alleging that Archer Daniels Midland Corporation (ADM) violated certain provisions of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1001 et seq.) and the regulations promulgated thereunder. The Board found that ADM had committed certain violations of the Act and regulations and imposed a penalty of $40,000. On appeal we upheld the Board's findings but vacated the penalty. We remanded the cause to the Board for a "determination as to whether under all the circumstances present any penalty is justified, and if so, to calculate it in conformity with views expressed in [our] opinion." (Archer Daniels Midland Co. v. Pollution Control Board (1983), 119 Ill. App.3d 428, 438, 456 N.E.2d 914, 920.) On remand the EPA and ADM stipulated that a penalty in the amount of $15,000 would be appropriate. The Board rejected the proposed settlement agreement and imposed a penalty in the amount of $32,500. ADM appeals.
The facts underlying the dispute herein were elicited at a hearing before the Board and are set forth in detail in the prior opinion of this court. No new evidence was presented on remand. Briefly, the facts are summarized below.
The ADM West Plant, a soybean and corn germ-extraction plant and vegetable refinery, is located in Decatur. A small stream runs south from the West Plant area to Lake Decatur. Just before emptying into Lake Decatur, the stream is dammed to create the Homewood Fishing Club Lake. About 16 residences have been erected around Homewood Lake, and about 30 persons lived there at the time of the hearing.
The complaint alleged that on six occasions between July 1975 and July 1979 ADM permitted effluents from the West Plant to be discharged into the stream, thus contaminating Homewood Lake. The complaint also alleged that a fish kill had resulted from the contamination and that at various times ADM had violated the provisions of its National Pollutant Discharge Elimination System (NPDES) permit.
The six occurrences described in the complaint involved ADM's storm-water collection system. On five occasions contaminated water was discharged into the Homewood tributary as the system's tanks overflowed. On the sixth occasion contaminated water was inadvertently discharged into the Homewood tributary while one of the system's tanks was being cleaned. Following each occurrence, ADM took steps to prevent the happening of a similar occurrence in the future. Letters from ADM to the EPA showed that ADM allowed contaminated storm water to be discharged from a holding tank on other occasions.
Several witnesses testified to fish kills in Homewood Lake. Several former and present residents of the area surrounding Homewood Lake testified to their displeasure over the condition of Homewood Lake. Most of the residents stated that the value of their properties increased during the relevant time period.
Evidence was also presented concerning ADM's role in the social, cultural, and economic life in the area. ADM had expended $4.5 million in its environmental efforts over the five or six years preceding the hearing and stood ready to spend an additional $1 million if a solution could be found to the problems caused by heavy rains.
As already mentioned, the penalty imposed by the Board was vacated, and the cause was remanded for a determination of whether a penalty should be imposed, and if so, the amount of the penalty. On remand the parties stipulated to the appropriateness of a penalty in the amount of $15,000. On November 7, 1985, the Board entered an order rejecting the proposed settlement. On March 27, 1986, the Board entered an order imposing a penalty in the amount of $32,500. ADM appeals, arguing that the Board erred in rejecting the settlement reached between the parties and in imposing a penalty in the amount of $32,500.
• 1 Before addressing the merits, we must address a jurisdictional question raised by the Board. The Board argues that the November 7, 1985, order rejecting the proposed settlement agreement was a final and appealable order and that ADM's failure to file a notice of appeal within 35 days thereafter deprives this court of jurisdiction. The Board's position is without support in the law.
Section 41(a) of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1041(a)) provides:
"Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of, pursuant to the provisions of the Administrative Review Law, as amended and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court."
The Board states that its November 7, 1985, order was a final order deciding the issue of whether a penalty should be imposed and appealable pursuant to section 41. However, the November 7, 1985, order was not final for purposes of appealability since the amount of the penalty had not yet been determined. In its brief, the Board freely acknowledges that on November 7, 1985, it had not yet determined the amount of the penalty. A judgment is final if it determines the litigation on the merits so that, if affirmed, the only things remaining is to proceed with the execution of the judgment. (Flores v. Dugan (1982), 91 Ill.2d 108, 435 N.E.2d 480.) Here, if ADM had sought review of the November 7, 1985, order, and if this court had affirmed on review, the Board, on remand, would have had to fix the amount of the penalty. For this reason, the November 7, 1985, order was not a final order, and this court does not lack jurisdiction.
Turning to the merits, we address ADM's argument that the board erred in rejecting the proposed settlement of the parties and in imposing a penalty in the amount of $32,500. Because of our disposition explained below, we will address only ...