ILLINOIS POLLUTION CONTROL BOARD
August 30,
1990
PEOPLE OF THE STATE
OF ILLINOIS,
Complainant,
v.
)
PCB 90—84
(Enforcement)
WE-TOAST BREAD
)
COMPANY,
INC.,
Respondent.
PAMELA
CIARROCCHI, ASSISTANT ATTORNEY GENERAL, APPEARED
ON
BEHALF
OF
COMPLAINANT.
ROBERT
MELTZER, ROBERT MELTZER & ASSOCIATES, APPEARED
ON BEHALF OF
RESPONDENT.
ORDER OF THE BOARD
(by J. Theodore Meyer):
This matter is before the Board on a complaint filed April 26,
1990 on behalf of the People of the State of Illinois (People),
by
and through its attorney, Neil F. Hartigan, Attorney General of the
State of Illinois, against We-Toast Bread Company (We-Toast).
The
We—Toast facility at issue
in this case
is located
at 1038 South
Kolmar,
Chicago, Illinois.
The complaint alleges that We-Toast
has
violated
Section
9(b)
of the Environmental
Protection Act
(Act),
Ill.Rev.Stat.
1987,
ch.
ill
1/2,
par.
1009(b),
and
35
Ill.
Adm.
Code
201.144.
Those
sections
prohibit
any
person from operating
existing
emission
sources
and
air
pollution
control
equipment
without
an
operating
permit
from
the
Illinois
Environmental
Protection
Agency
(Agency).
Hearing
on this matter was held June
13,
1990,
in
Chicago,
Illinois.
At
hearing,
the parties
submitted
a stipulation
and
settlement
agreement.
According
to
the
stipulation,
We-Toast
processes bakery waste for animal and poultry food at
its Kolmar
Avenue facility.
The facility operates 8 air emission sources and
3 pieces
of air pollution
control equipment,
and operated those
sources
and equipment without
permits
from at
least
1972
until
April
6,
1990,
when the Agency issued an operating
permit.
We-
Toast admits to past violations of Section 9(b)
of the Act and 35
Ill.
Adin.
Code 201.144, and agrees to pay a penalty of $3,000.
After reviewing the record
in this case,
the Board requires
additional
information.
The record shows that We—Toast operated
11 pieces of unpermitted equipment
for a period of
18
years, and
is now willing to pay a $3,000 penalty.
Pursuant to Section 42(a)
1
14—7’)3
2
of the Act,
as
it existed
at the time
of
these violations,
any
person who violates the Act or Board regulations
is liable
for a
civil penalty of up to $10,000 per violation and up to $1,000 per
day for continuing violations.1
A mathematical calculation shows
that
We—Toast
is
liable
for
up
to
more
72
million
dollars
in
penalties,
excluding
interest,
yet the stipulation
provides
for
only
$3,000--roughly
$167
per year
for
operating
11
pieces
of
unpermitted equipment.
The Board has both the power and the duty
to exercise independent discretion over settlement agreements, and
is
obligated
to
ensure
that
all
penalties
will
aid,
in
the
enforcement of the Act.
Illinois Environmental Protection Agency
V.
Archer Daniels Midland,
68 PCB 501,
503
(PCB 80—151, March 27,
1986), modified, Archer Daniels Midland v. Pollution Control Board,
149 Ill.App.3d
301,
500 N.E.2d
580,
102 I11.Dec.
687
(4th
Dist.
1986).
Although the penalty seems
low in this
case,
the Board
notes
that
the
record
does
not
contain
any
information
on
the
existence
of
any mitigating
circumstances,
including We—Toast’s
ability to pay.
See Illinois Environmental Protection Agency v.
Arnold’s
Sewer
and
Septic
Service,
63
PCB
43,
46
(PCB
83-23,
February
20,
1985).
Therefore,
the Board directs the parties
to
file additional explanation
in support
of the stipulation.
This
explanation shall be received by the Board on or before October 15,
1990.
Finally, the Board notes that although the complaint
in this
case asks the Board to order We—Toast to pay all costs,
including
reasonable
attorneys’,
expert
witness’
and
consultants’
fees,
expended by the People in pursuit of this action, the stipulation
is completely silent on this issue.
The People shall address this
omission in its filing, due October
15,
1990.
IT
IS SO ORDERED.
J.
D.
Dumelle
and
J.
Marlin concurred;
3.
Anderson
and
R.
Flenial dissented.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
cer
fy
that
the
above
Order
was adopted
on
the
‘.3O~~
day of
ç~~,’—
,
1990,
by a vote of
5~~l
/
‘~-~i~
.
V~A~
Dorothy M. Gu)~n, Clerk
Illinois Poll~tionControl Board
1
The
Board notes that the penalties were raised to $50,000
per violation and $10,000 per day,
effective July
1,
1990.
1
1~—7~)4