Lloyd A. Fry Roofing Co. v. Pollution Control Bd.

• Decision Date: 17 February 1977
• Docket Number: No. 62658,62658
• Parties: , 5 Ill.Dec. 23 LLOYD A. FRY ROOFING COMPANY, a corporation, Petitioner, v. POLLUTION CONTROL BOARD et al., Respondents.
• Court: United States Appellate Court of Illinois

Page 23

361 N.E.2d 23

46 Ill.App.3d 412, 5 Ill.Dec. 23

LLOYD A. FRY ROOFING COMPANY, a corporation, Petitioner, v. POLLUTION CONTROL BOARD et al., Respondents.

No. 62658.

Appellate Court of Illinois, First District, Fourth Division.

Feb. 17, 1977.

Arnstein, Gluck, Weitzenfeld & Minow, Chicago (Burton Y. Weitzenfeld, Arthur L. Klein and Paul L. Leeds, Chicago, of counsel), for petitioner.

William J. Scott, Atty. Gen. (George William Wolfe, Asst. Atty. Gen., Environmental Control Division, Chicago, of counsel), for respondents.

ROMITI, Justice.

The petitioner appeals from an order of the Illinois Pollution Control Board assessing a $40,000 penalty for certain air pollution violations after a remand by this court for reconsideration of the penalty originally assessed. On this appeal, the petitioner contends that (1) the Board erred in not considering evidence that the petitioner has been in compliance since 1972, since (2) no civil penalty may be assessed where the petitioner has already complied with the Act and the Agency regulations since then the penalty would be strictly punitive and not to aid enforcement. The petitioner also contends that (3) in both proceedings before the Board it was denied its right to present its arguments to the Board itself.

While we agree with the petitioner that certain evidence could have been considered by the Board we find that the assessment of a penalty was nonetheless justified under the facts of the case. However, we find the penalty to be excessive and reduce it to $10,000.

This case has already been before this court in 20 Ill.App.3d 301, 314 N.E.2d 350, leave to appeal denied, Cert. denied 420 U.S. 996, 95 S.Ct. 1438, 43 L.Ed.2d 679. The petitioner Fry is one of the world's largest manufacturers of asphalt roofing. The facility involved in the present proceeding is located in Summit, Illinois. During 1970 and 1971 this facility produced emissions far above the tolerable level which interfered with local residents' enjoyment of their property, caused their eyes to tear and sting and their throats to burn and gave them headaches and nausea. The children, because of the emissions, were unable to play baseball and football in contiguous areas. When the community residents complained, Mr. Fry, on December 18, 1970, told the members of a local group called Save Our Resources and Environment (S.O.R.E.) that he knew he was polluting, the S.O.R.E. could take him to court to make him stop.

On January 7, 1971, Fry filed a petition for a variance from the provisions of the Environmental Protection Act. The petition stated that Fry had installed no control equipment because of possible relocation problems caused by the proposed South-West Expressway. On February 26, 1971 S.O.R.E. filed a complaint before the Pollution Control Board alleging violations of section 9(a) of the Environmental Control Act from February 17, 1971. By this time Cook County had also filed suit against Fry. A consent order under the terms of which Fry agreed to install emission control equipment by July 19, 1971 was entered on May 10, 1971. The Pollution Control Board was, during the hearings, advised of this order and that Fry was in the process of installing the equipment. On October 14, 1971, after refusing to hear written or oral arguments from either side, the Board found Fry guilty of violating section 9(a) of the Act and also of violating certain Rules and Regulations. It ordered Fry to cease and desist emissions from its Summit operation until such time as the air pollution abatement equipment had been installed and was properly operating; ordered Fry to advise the Board when the installation had been completed; determined that the proceeding should remain open for the Board to conduct a further hearing after such notice to determine if, in fact, the odors had been abated and assessed a penalty of $50,000.

On February 1, 1972 Fry notified the Board that the equipment had been installed. Subsequently, the Environmental Protection Agency and the other parties stipulated that there were no odors and that Fry was in compliance with the Act. On May 24, 1974 this court reversed the Board's finding of violations of the Rules and Regulations, not on the basis that the findings were not supported by the evidence but because these violations had not been alleged in the complaint. Since the penalty had been assessed for all of the violations and did not indicate what portion of the penalty was imposed for the statutory violation, the court remanded the question to the Board for a redetermination of an appropriate penalty. The court did not, of course, rule on the question whether any penalty was appropriate under the circumstances.

On remand, the Board in its order of July 31, 1975 found that (1) the discharges of contaminants 'have had an unreasonable and substantial adverse interference with the surrounding citizen's health, general welfare, and physical property'; (2) 'the plant has a substantial social and economic value'; (3) 'the manner in which Fry operates its plant is unsuitable to the surrounding area'; (4) 'the counsel representing Fry and the manager of Fry, testified that no emission control devices were employed, but that plans for installation of such devices were being made. Although questioned by Fry, it is clear that the principle source of emissions causing the air pollution are the saturators where heated asphalt is absorbed by felt. No air pollution devices are employed on the stacks connected with the saturators. Mr. Harvey Hoffman, former Director of Environmental Control for the Fry plant, testified about pollution control equipment installed at Fry's 26 other asphalt roofing plants located throughout the country. The Air Pollution Engineering Manual, U.S. Department of Public Health, 1967 was introduced as EPA Exhibit 3. This exhibit depicts the state of the art in emission control for asphalt saturators. This evidence establishes that it would be both technically practicable and economically reasonable for Fry to install control equipment to abate the violation of Section 9(a).'

The Board then concluded:

'Because of the great degree of unreasonable interference with the enjoyment of life and property of the residents surrounding Fry, we find that a substantial penalty is warranted to compel Fry to achieve compliance. As noted by the Court, 'Mr. Fry told the group (members of S.O.R.E.) that he knew he was polluting, but S.O.R.E. could take him to Court to make him stop.' This occurred at a meeting on December 18, 1970. Evidently S.O.R.E. listened, as they filed the present complaint on February 21, 1971, some 73 days later.

It is our determination that a penalty of $40,000 should be imposed against Fry for the violation of Section 9(a). The original Opinion would have imposed a penalty of $9,000 for the Air Rule violation and $1,000 for the failure to file an ACERP. By imposing a substantial penalty for the violation of Section 9(a) of the Act, the Board feels that Fry will be more likely to comply with the provisions of the Act without S.O.R.E. having to take Fry to Court again. We therefore, impose this penalty not as a punitive measure, but rather as an aid to the enforcement of the Act.'

Fry filed a petition for rehearing pointing out the language in the 1975 opinion indicating that Fry was not presently in compliance with the Act and pointing out that: (1) during the hearings preceding the original 1971 opinion the Board was advised of the Agreed Order and that Fry was even then in the process of installing the equipment and that the order even referred to this fact; (2) on February 1, 1972 Fry advised the Board that the installation was complete and on March 9, 1973 all the parties stipulated to the Board that no odor was found to be emanating from the Fry stack; (3) this order 'obviously' overlooked the fact that the equipment was installed more than three and a half years before at a cost in excess of $150,000 and that the Board then held Fry to be in compliance.

The Board denied the petition for rehearing and the request to vacate the penalty on the grounds that the information relied on by Fry is outside the record of the hearings compiled by the Board in reaching its prior determination and outside of the record presented to the appellate court on appeal.

I

While it is not clear from the record, apparently the Board believed that it could not consider the evidence as to compliance and intended compliance because it was outside the record. Both factually and legally this was erroneous.

At the time of the October 14, 1971 order, the Board was fully aware of the fact that Fry was subject to a court order to install the devices and was in the process of so doing. This court in its first opinion also referred to the court order. Furthermore, the October 14, 1971 order held the proceedings open for proof of compliance. The Board in its subsequent orders has treated the subsequent proceedings as an implementation of the October 14, 1971 order. And all of these orders were certified as part of the record by the Clerk of the Pollution Control Board. Having treated the record all along as one continuing proceeding and record, it is now inconsistent of the Board to say that it is not.

But even of the record had not contained evidence of compliance, the Board was at liberty to open the record and receive evidence of compliance. Even in civil cases, if the issue is not determined on its merits and the judgment is reversed and the cause remanded with directions to proceed in conformity with the views expressed in the opinion, a retrial may be had, and evidence offered by either party which falls within the principles announced must be received even though it is new evidence. (Roggenbuck v....