Harris-Hub Co., Inc. v. Illinois Pollution Control Bd.

Decision Date07 July 1977
Docket NumberNo. 76-42,HARRIS-HUB,76-42
Citation8 Ill.Dec. 685,365 N.E.2d 1071,50 Ill.App.3d 608
Parties, 8 Ill.Dec. 685, 10 ERC 1365, 7 Envtl. L. Rep. 20,712 COMPANY, INC., an Illinois Corporation, Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD and Environmental Protection Agency, Respondents.
CourtUnited States Appellate Court of Illinois

Altheimer & Gray, Chicago, for petitioner, Harris-Hub Co., Inc.; Roger B. Harris, Chicago, of counsel.

William J. Scott, Atty. Gen., Illinois, for respondents, Environmental Protection Agency; Jeffrey S. Herden, Chicago, of counsel.

LINN, Justice.

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. 1111/2, 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 5000 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 seventy-six 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. 1111/2, par. 1002(b); City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 313 N.E.2d 161.) We agree.

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. Illinois 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 would aid in enforcement of the Act. In Southern Illinois Asphalt Co., the Supreme Court in reversing the PCB imposition of a penalty for the respondent firm's failure to obtain a permit stated:

"Obviously the General Assembly did not intend that the Pollution Control Board should impose a monetary fine in every case of a violation of the Act or Regulations."

"Arguably, the imposition of a civil penalty for each violation may deter further violations by the one penalized or by others, thus aiding in the administration of the Act. However, the Pollution Control Board itself has recognized that the arbitrary imposition of penalties can in fact hinder the fulfillment of the purpose of the Act."

"The failure to obtain the permit was pure inadvertence. There was no need to assess a penalty in aid of the enforcement of the Act because Southern had ceased operating prior to the filing of the complaint. The fine could not be imposed as a penalty for any consequences of polluting the air since Southern had not been charged with air pollution. The fine was an arbitrary penalty and further unjustified in view of the mitigating circumstances shown by the evidence." (60 Ill.2d 204, 208, 209, 326 N.E.2d 406, 408, 409.)

To the same effect, see Bresler Ice Cream Co. v. Pollution Control Board (1974), 21 Ill.App.3d 560, 315 N.E.2d 619 and Chicago Magnesium Casting Co. v. Pollution Control Board (1974), 22 Ill.App.3d 489, 317 N.E.2d 689, holding that the mere fact that the respondent firms in those cases had been in violation of provisions of the Act was not alone sufficient to permit imposition of penalties.

Furthermore, good faith is a mitigating factor as evidenced by the PCB's own decision in Employees of Holmes Bros. v. Merlan, Inc. (1971), 2 Ill. PCB Op. 405, 409 where it stated:

"In the opinion of the Board, Merlan has exercised good faith in trying to control its problems, and to penalize a company such as this would discourage all those who act in good faith to bring an end to their pollution problems."

In this case the record shows no basis for assessing a penalty other than the fact that Harris had not obtained a permit. Considering the totality of the conduct of Harris, we cannot say that the imposition of a fine in this case would materially aid in the enforcement of the Act. In fact, the evidence also discloses that Harris was under the good faith belief, even if erroneous, that it was not required to obtain a permit. Under the facts presented, we believe any inadvertence attributable to Harris may be excused. See Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill.2d 204, 326 N.E.2d 406.

A careful reading of the trial testimony tends to indicate the belief by certain of the EPA witnesses that Harris was a recalcitrant respondent, deliberately attempting to avoid compliance with the Act. The record fails to support that belief. The balance between maintaining an important principle and pursuing practical accomplishment is often difficult to discern....

To continue reading

Request your trial
9 cases
  • City of Chicago v. Cotton, 1-03-2892.
    • United States
    • United States Appellate Court of Illinois
    • February 28, 2005
    ......No. 1-03-2892. Appellate Court of Illinois, First District, First Division. February 28, ...Regent Realty Group, Inc., 197 Ill.2d 1, 10, 257 Ill.Dec. 676, 754 N.E.2d ... to the nominal amount of $1, citing to Harris-Hub Co. v. Pollution Control Board, 50 Ill.App.3d ......
  • People of State of Ill. v. Commonwealth Edison Co., 78 C 2675
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 4, 1980
    ......Supp. 1145 . PEOPLE OF the STATE OF ILLINOIS, Plaintiff, . v. . COMMONWEALTH EDISON COMPANY, ... Rules and Regulations of the Illinois Pollution Control Board. 1 In 78 C 2675, plaintiff seeks ... Agency, supra ; League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1168-69 n. 5 (9th ... 57 Ill.2d 482, 313 N.E.2d 161 (1974); Harris-Hub Co., Inc. v. Pollution Control Board, 50 ......
  • Carlson v. Dorsey Trailers, Inc., 62933
    • United States
    • United States Appellate Court of Illinois
    • July 7, 1977
    ......No. 62933. Appellate Court of Illinois, First District, Fourth Division. July 7, 1977. ...Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. That ......
  • City of McHenry v. Suvada, 2-08-0928.
    • United States
    • United States Appellate Court of Illinois
    • December 16, 2009
    ....... No. 2-08-0928. . Appellate Court of Illinois, Second District. . December 16, 2009. . [920 ...Regent Realty Group, Inc., 197 Ill.2d 1, 10, 257 Ill.Dec. 676, 754 N.E.2d ...921, 668 N.E.2d 106, citing Harris-Hub Co. v. Pollution Control Board, 50 Ill.App.3d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT