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03/13/89 Trilla Steel Drum v. the Pollution Control

March 13, 1989

TRILLA STEEL DRUM CORPORATION, PETITIONER

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 788, 180 Ill. App. 3d 1010, 129 Ill. Dec. 738 1989.IL.317

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Trilla Drum Corporation (Trilla) appeals from an administrative decision of the Illinois Pollution Control Board (the Board) imposing a $10,000 fine against Trilla for failure to comply with Illinois permit requirements for a period in excess of 15 months.

Trilla is an Illinois corporation engaged in the business of manufacturing 55-gallon steel drums in Chicago, Illinois. As part of its manufacturing process, Trilla applies coatings to both the interior and exterior of the steel drums, resulting in emissions of volatile organic materials into the air. In December l982, the Board adopted certain regulations that pertain to steel drum manufacturers requiring that coatings or linings used to cover the interior of steel drums contain no more than 4.3 pounds of VOM per gallon of interior coating as applied and that paints or coatings used to cover the exterior of steel drums contain not more than 3.5 pounds of VOM per gallon of exterior coating as applied. (35 Ill. Adm. Code 215.204(j) (1985).) Since Trilla conducts a regulated activity, it is required to have a current permit issued by the Illinois Environmental Protection Agency (the Agency) in order to operate its business. Trilla's permit expired on December 31, 1984, and for a period of 15 months Trilla did not renew its operating permit.

On January 16, 1986, Trilla filed its petition for a variance *fn1 from the Board requirements until December 31, 1987. The Board granted the variance on February 5, 1987, finding that the company would suffer an arbitrary or unreasonable hardship if the variance was denied. On March 13, 1986, Trilla filed an application with the Agency for an operating permit which the Agency denied for the reason that the Board regulations to control emissions might be violated. On May 19, 1987, a second permit application was filed with the Agency and was also denied for the same reason.

On April 18, 1986, the Agency filed a two-count complaint against Trilla. Count I alleged that Trilla had operated its facility since January 1, 1985, without an operating permit from the Agency, and count II charged that the company's interior coating line was not in

compliance with the Board's regulations. A hearing on the Agency's complaint was held on July 21, 1986, at which time a stipulation of facts was presented to the Board. Among the facts agreed to by the parties was that Trilla did not have an operating permit for its facility between January 1, 1985, and the date the Agency's complaint was filed due to its failure to comply with the Board's emission control regulations. Trilla contested the allegation that its interior coating line was emitting VOM in excess of that allowed by the Board's regulations and presented evidence that it actively tried to reduce the violative air emissions.

On June 25, 1987, the Board issued an opinion finding that the Agency did not meet its burden of proving the allegations of Trilla's noncompliance with the air emissions standards as contained in count II of the Agency's complaint. Regarding the count I allegations of permit violations, the Board found that because Trilla admitted to operating without a permit from January 1, 1985, to April 18, 1986, Trilla had violated both section 9(b) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1009(b)) and 35 Ill. Adm. Code 201.141 and 215.204(j) (1985). The Board imposed the maximum $10,000 fine as an incentive for Trilla to come into compliance with its regulations. The Board further ordered Trilla to cease and desist operating until such time as it acquired a permit. Thereafter, Trilla moved to modify the order of June 25, 1987, to allow it to continue operating while it continued actively to seek an operating permit. Trilla also requested the Board to vacate or reduce the $10,000 fine. In response to the motion, on August 11, 1987, the Board stayed its cease and desist order for 60 days to allow Trilla to reapply for an operating permit, but denied relief from the imposition of the $10,000 fine. This direct appeal from the order imposing the fine by the Board followed.

On appeal, Trilla argues that a mere violation of the permit requirement without a showing of harm to the environmental regulation process does not justify a $10,000 fine. Section 42(a) of the Illinois Environmental Protection Act (the Act) provides:

"Any person that violates any provisions of this Act or any regulation adopted by the Board, or any permit or term or condition thereof, or that violates any determination or order of the Board pursuant to this Act, shall be liable to a civil penalty of not to exceed $10,000 for said violation and an additional civil penalty of not to exceed $1,000 for each day during which violation continues." (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1042(a).)

General constraints have been established concerning the power of the Board under section 42(a) to levy monetary penalties. Penalties are imposed primarily to aid in enforcement of the Act rather than to impose punishment. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1033(c); City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 313 N.E.2d 161.) A monetary fine must be supported by some reasonable ground appearing in the record (Bresler Ice Cream Co. v. Pollution Control Board (1974), 21 Ill. App. 3d 560, 315 N.E.2d 619) and must be commensurate with the seriousness of the infraction for which it is imposed. (City of Chicago v. Pollution Control ...


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