ILLINOIS POLLUTION CONTROL BOARD

May

10,

1990

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

PCB 88—71

(Enforcement)

ALLEN BARRY,

individually and

ALLEN

BARRY,

d/b/a

ALLEN

BARRY

LIVESTOCK,

Respondent.

MS.

PAM

CIARROCCHI,

ASSISTANT

ATTORNEY

GENERAL,

APPEARED

ON

BEHALF

OF

THE

COMPLAINANT;

AND

MR.

DONALD

A.

MANZULLO,

P.C.,

APPEARED

ON

BEHALF

OF

THE

RESPONDENT.

OPINION AND ORDER OF THE BOARD

(by

B.

Forcade):

This matter comes before the Board

on the April

19,

l98~8

complaint of

the Attorney General,

filed on behalf of

the

Illinois Environmental Protection Agency

(‘Agency”).

The

complaint alleges

that respondent, Allen Barry,

individually and

d/b/a Allen Barry Livestock

(“Allen Barry”)

violated Sections

12(a),

~d) ano

(f)

of the Illinois Env~rornenral Protect~o~-’Act

(“Act”)

tne

~ater cuality standaras

in

35

111

?o~ Coca

02

203

and

302 212

tr-e

eff1ue~itsta~carcsof

35

Ill

~cn

Coca

304

lOS

and the oDerational

rules and oermit

recuirements

for acricuiture

related oollutjon

in 35111.

Adm.

Code 301.403(a), 50l.404(b)(l)

and 502.104.

The Acencv comDlalr.t details

the vIolations

in

itur

counts described below.

A Stipulation and Proposal

for

Settlement

was

filed

April

12,

1989,

leaving the issue of

a

penalty

for the Board’s decision here.

Procedural

History

Hearinc

is mandatory pursuant

to Section

33

of

the Act and

the case was acceDted

for hearinc

at

the Aori!

21,

1988 Board

meetinc.

Hearing was held

on January

10,

1989, and continued

to

March

14,

1989.

No

member

of

the oublic was

in attendance.

The

parties

rii~ed tne executec

Stipulation

and

Proposat

tor

Settlement

on Aoril

12,

1989.

The Agency’s Dost-hearlnc brief

support of

a penalty

was

filed May

1,

1989.

Alien Barry’s brief

in oPposition

to a penalty was filed May

22, l~89.

111-11

---

The Facility

Allen Barry owns and operates

a livestock operation,

known

as

Allen Barry Livestock

in Ogle County,

Illinois.

The

confinement operation handles more than

300 brood cows and

slaughter

or

feeder cattle on an ongoing

basis.

The facility

includes feedlots and

at

least one manure storage pile.

A man-

made drainage ditch collects runoff

from these.

Rufloff,

via a

man—made drainage ditch and

in part via direct drainage,

to an

unnamed tributary

to Mill Creek

in Ogle County

is

the subject of

this enforcement action.

Comolaint:

Counts

I

through Count

IV

Count

I alleges

that

on or about July

27,

1982,

and

continuing intermittently through April,

1988,

Allen Barry

violated Section

12(a)

and

(d)

of

the Act.

Those subsections

govern the discharge

or demosit

of

contaminants

which

cause

or

Leno

to

cause

water

collut~on

or

wnicn

create

a

water

pollution

hazard.

Allen

Barrys

operations

allegedly

discharged

contaminants, livestock waste and feedlot

runoff

into the unnamed

tributary of Mill Creek.

Agency personnel witnessed

this

discharge

on July

27,

1982, November

5,

1985,

April

22,

1987,

and

February

18,

1988.

The discharge allegedly altered the chemical

and

biological

nature

of

the

water

resulting

in

harmful

or

injurious conditions

for fish

or

aquatic

life

and

harmful

conditions

for public health.

Count

II alleges

that Allen Barry has confined more than 300

brood cows and cattle

in

its ongoing operation while at

no

time

possessing

a National Pollutant Discharge Elimination System

(“NPDES”)

permit

for

the

related discharges.

This

is an alleged

violation of Section

12(f)

of

the Act,

which requires an NPDES

permit

for point source discharges.

On or about July

27,

1982

through April,

1988,

Allen

Barry also allegedly violated

33

Ill.

Adm. Code 501.403(a),

50l.404(b)(l), and 502.104.

These sections

recuire

that livestock

facilities maintain diversion dikes, wails

or curbs

to control surface waters and contain runoff;

that

manure

stacks

be

managed

to

prevent

runoff

and

leachate

from

entering state waters; anc that NPDES permits

oe ontatnec

for

facilities of

a ce~teins~ze~n~cn disc-~argeDolute-~ts into

navigable waters directly or

through man—made devices.

Count

III alleges

that Allen Barry violated the ;~ater

Quality Standard regulating unnatural

sludge as found

in

35

Ill.

Adm.

Code

302.203 and the effluent standard stated

in

35

Ill.

Adm. Code

304.103 regulating effluents wnich cause

a violation of

water quality standards.

The Agency alleges that

on or

about

July

27,

1982 and continuing through April,

1988,

Allen Barry’s

oDerations

caused

or

contr:buted

to

murky,

brownish,

or

turbid

water and manure odors

in

the unnamed tributary.

These

conditions

were specifically noted by the Agency on July

27,

1982,

November

5,

1983,

and April

22,

1987.

Allen

Barry thereby

allegedly violated Section

12(a)

of

the Act and

35

Ill.

Adm. Code

302.203

and

304.103.

111-12

---

Count

IV alleges

that Allen Barry violated Section

12(a)

of

the Act and

33

Ill. Adm. Code 304.105 also noted

in Count

III and

the particular

water quality standard for ammonia nitrogen.

Pursuant

to

35

Ill. Adm. Code

302.212, ammonia nitrogen may not

exceed

15 mg/l

(milligrams per liter).

On November

15,

1985 and

on February

18,

1988,

levels of

59.0 mg/l and 18.5 mg/l were

recorded.

The Agency alleges

that on

or about July’27,

1982

through April,

1988,

Allen Barry therefore was

in violation of

Section

12(a)

of

the Act and 35

Ill. Adm.

Code 302.212 and

304.105

including,

but

not limited

to,

the two particular dates

above.

The Agency alleces

that the violations described

in Counts

I

through

IV

above

were continuing violations

from July

27,

1982

through the April,

1988 complaint date and that they

will

continue unless halted by

the Board.

The relief

recuested

is

that

the Board direct Allen Barry

to cease and desist from

further

vtolations,

that

the

Board

assess

a

penalty

not

to

exceed

$10,000

for Count

I violations and $1,000 per

each day during

which

the violations continued.

StiDulation

The Stipulation and Proposal for Settlement

(with

Exhibits

A

through

F) was executed in March of

1989 and filed with the ~oard

on April

12,

1989.

It

sets

forth

facts noted

in the facility

description above and acknowledges

that pursuant

to Section

31(d)

of the Act,

notice of apparent violations was given

to Allen

Barry by letters dated October

15,

1982 and December

18,

l98~5.

(Exhibits A and B.)

The following additional

facts are

stioulated

by

the

carties.

Allen Barry’s livestock operation,

a sole ~roorietorship,

discharged

runoff from

its feedlots.

Those discharges requ:re

a

NPDES permit.

At

no time has Allen Barry possessed,

nor has the

Agency

issued,

an

NPDES

permit

for

those

discharges.

Alien

Barry

caused,

threatened

or allowed contaminants,

livestock waste

and

feedlot

runoff,

to be discharged upon

the land and

into

the

unnamed tributary of Mill Creek,

a water

of

the State

of

Illinois,

so as

to cause or

tend

to cause water pollution

in

Illinois.

These

discharges

were

observed

on

or

about

July

27,

1982,

November

5,

1985,

Aoril

22,

1987,

and February

18,

1988,

by

Acenc~’oerso~ e

~o

.t~’essect’~eo~ect ctsc~a~geof l~esrock

waste

and

feeclot

runo:f

~n:o

me

unnarnec

trtoutary wnich

intersects

and

runs

through

Responcent’s

property

:rcm

sou:n

to

north and empties

into Mill Creek.

(Ex.

C).

On July

27,

1982;

November

5,

1983;

April

22,

1987;

and

February

18,

1988, water samples were taken at and around Allen

Barry’s

facility.

These samples showed violations

of water

quality

standards

contained

in

the

Board

regulations

for

unnatural

sludge

and

ammonia

nitrogen.

(Ex.

D).

111-13

---

The Terms of Settlement

provide that

it shall

be

a

full

settlement of

the action filed by

the Agency and Allen Barry’s

liability for all violations

alleged

•in the complaint.

The

Agency contends,

and Allen

Barry admits,

that

the facts

as set

out

in the Complaint constitute

the following violations of the

Act and Board Regulations:

Count

I:

Section

12(a)

and

12(d)

of

the

Act

as

these sections relate to livestock waste;

Count

II:

Section

12(f)

of

the Act and 35

Ill.

Adm.

Code 501.403(a)

and 502.104;

Count

III:

Section

12(a)

of

the Act and

35

Ill.

Adrn.

Code 302.203 and 304.103;

Count

IV:

Section

12(a)

of

the Act and

35

Ill.

Adm.

Code 302.212 and 304.103.

Allen Barry does

not admit

the violation of

33

Ill.

Adm.

Code

501.404(b)(l)

alleged

in Count

II.

That section

regulates

handling and storage of livestock waste

in temporary manure

stacks

to prevent

runoff and leachate problems.

Allen Barry agrees

to cease

and desist from any and all

violations

of the Act and Board

regulations.

As

a remedial

course of action, Allen Barry agrees to submit

to the Agency by

April

25,

1989 specifications

for the construction of

a livestock

waste handling

facility,

in accordance with the Act and Board

regulations,

Such construction must be implemented by Allen

Barry within

180 days after Agency approval and must

be completed

in accordance with Agency approved specifications no

later

than

August

1,

1990.

Allen Barry agrees

to apply

for and obtain an NPDES permit

concurrent

with

the start of

construction of

its livestock waste

handling

facility.

With respe~t to the unnamed

tributary

on

the

eastern portion of his property, within 180 days of approval of

this settlement, Allen

Barry agrees

to do the

following:

1.

place

a

fence

25

feet

from each

side

of

the tributary;

2.

plant

dense

vegetation

within

this

25—

foot

area;

3.

maintain

one

area

for

crossing

this

tributary;

and

4.

maintain a vegetative cover

on pasture.

Allen Barry agrees

to act

in accordance with all terms

and

conditions of all permits

issued

by the Agency.

11 1-~1~

---

The parties have notstipulated

to

a civil penalty

to be

paid by Allen Barry for violations

of

the Act and regulations.

The Agency recuests a penalty of u~to $10,000 and Exhibits A

through E

in support

of

a penalty.

Allen Barry argues that

no

penalty

is necessary and provided Exhibit

F

in support of

that

position.

Exhibits A through

F amount to about

78 pages of

various documents,

including correspondence since

1982 and

inspection

reports.

Statutory Penalty Authority

As

part of

a final order

in an enforcement case,

Section

33(b)

empowers the Board

to impose civil penalties

in accordance

with Section

42 penalty provisions.

Generally,

Section 42(a)

and

(b)

of

the Act provides

for ootential civil cenalties

of

UD

to

$10,000 per violation and up

to $1,000

per day.

Ho~ever,certain

violations,

such as

of Section 12(f),

carry a $10,000

per day

penalty.

Subsections

42(a)

and

(b)

provide

in pertir.ent

part:

a.

Except

as

provided

in

this

Section,

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

determi-

nation

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

etch

day

during which violation continues;

b.

Notwithstanding

the

provisions

of

subsection

(a)

of this Section:

1.

Any

person

that

violates

Sectton

12(f)

of

this

Ac:

or

any

NPDES

permit

or

term

or

condition

thereof,

or

any

filing

requirement,

regula-

tion

or

order

relating

to

the

NPDES

permit

program

shall

be

liable

to

a

civil

penalty

of

not

to

exceed

$10,000 per day

of violation;

.

.

Ill.

Rev.

Stat.

ch. ll1~, par.

1042.

In an enforcement action Section

31(c)

of

the Act places the

burden of proof on the Agency or other

complainant

to

show

either

1

Effective January

1,

1990 penalty amounts increased

to S50,000

per violation and S10,000 per day,

but

these amounts are not

aoolicable

to the violations here,

which

are

from

the earlier

1982—1988

time period.

111-1S

---

that the respondent has caused or threatened

to cause air

or

water pollution or

that the respondent has violated or threatens

to violate any provision of

(thel

Act

or any rule or provision of

the Board.

If such proof

has been made,

the burden shall be on

the respondent

to show that compliance with the Board’s

regulations would impose an arbitrary or unreasonable hardship.

How this burden of proof

is carried was explained by

the

Illinois Supreme Court

in Incinerator,

Inc.

v.

Pollution Control

Board,

59

Ill.2d

290,

319

N.E.2d

794,

799

(1974).

There,

the

court

stated that

“the EPA had the burden of proving all

essential elements of

the type of

air pollution violation

charge~d, and the Board must

then assess

the sufficiency of

such

proof

by

reference

to the

Section. 33(c)

criteria,

basing thereon

its findings and orders.”

The Suoreme Court

later clarified this

in Processing

&

Books,

Inc.

v.

Pollution Control

Board,

64 Ill.2d

68,

351 N.E.2d 865

(1976).

In

that

case,

the court stated

that

the

Incinerator

Inc.

case

was

not

intended

to

place

on

the

Agency

“the burden of proving,

by evidence which

it offered,

the

unreasonableness of the respondents’

conduct

in terms of each of

the four

criteria mentioned

in Section

33(c).”

That

interpretation would “frustrate the purpose of

the Act” and “also

render redundant

or contradict

the allocation of

the burdens of

proof

in Section

31(c).

Processing

&

Books,

351 N.E.2d at 869

(emphasis added).

As

to the Board’s responsibility

to evaluate the evidence

offered,

the Illinois Supreme Court

requires that unreason-

ableness of the alleged pollution must be determined with

reference

to the criteria stated

in Section

33(c).

Wells

Manufacturing Company

v.

Pollution Control Board,

73

Ill.2d

226,

383 N.E.2d~148

(1078),

citing Mvstik TaDe

v. Pollution Control

Board,

60 Ill.2d

330,

328 N.E.2d

5

(1975),

Incinerator,

Inc.,

59

Ill.2d 290

(1974) and Citvcf Monmouth

v. ?ollut~onControl

Board,

57

Ill.2d 482,

313 N.E.2d 161

(1974).

However,

this does

not require

that the Board find against

the respondent with

respect

to each of

the Section

33(c)

criteria.

Nor does

it mean,

“that

the Board

is ~rec1uded

from considering additional

relevant:

factors.”

Wells

Manuf~~rin~ç2moanv,

383

N.E.2d at

151.

See

also,

Southern Illinois Asohalt Comoany,

Inc.

‘1.

Pollution

Control Board,

60

Ill.2d

204,

326 N.E.2d

406,

408

(1975)

directing the Board

to consider all the facts and

circumstances.

As noted below,

Section

33(c)

specifically

directs

the Board

to consider all facts and

circumstances

in

enforcement cases.

Section

33(c)

provides:

c.

In

making

its orders and determinations,

the

Board

shall

take

into

consideration

all

the

facts

and

circumstances

bearing

upon

the reasonableness of

the emissions,

discharges,

or

deposits

involved includ-

ing, but not

limited

to:

Ill-i

(~

---

1.

the

character

and

degree

of

injury

to,

or

interference

with

the

protection

of

the

health,

general

welfare and physical property of

the

people;

2.

the social and economic value

of the

pollution source;

3.

the suitability

or

unsuitability

of

the pollution

source

to

the area

in

which

it

is

located,

including

the

cuestion

of

oriority

of

location

in

the area involved;

4.

the

technical

practicability

and

economic

reasonableness

of

reducing

or

eliminating

the

emissions,

discharges

or

deposits

resulting

from such pollution source;

5.

any

economic

benefits

accrued

by

a

non—complying

pollution

source

because

of

its

delay

in

compliance

with pollution control

requirements;

and

6.

any subsequent compliance.

Section

33(a)

of the Act requires that

the determinations

which the Board makes pursuant to Section

33(c) above must

be

in

a written opinion describing

the facts and reasons

for the

decision.

The Board’s findings are subject

to

review pursuant to

Section

41

of the Act.

The standard of

review of

the Board’s

decisions

is the manifest weight of

the evidence.

This means

that,

in carrying out its quasi—judicial function

in enforcement

cases,

the Board’s decision will be upheld unless contrary to the

manifest weight of the evidence.

Wells Manufacturinc Comoany,

383 N.E.2d

at

151.

Some enforcement

cases

result

in settlements.

The Board’s

regulations set forth procedures

for settlement of enforcement

cases at

35

Ill. Adm.

Code 103.180.

In

a

1986 air pollution case

involving

a $20,000 stipulated penalty,

the Fifth District

decided that

“the Board has

the statutory authority

to accept

settlement

agreements

in enforcement cases where

findings of

violation are precluded by

the terms of

the stipulation and

proposal but where

the respondent

is ordered

to

pay a stipulated

penalty and

to timely perform agreed upon compliance

activities.”

Chemetco,

Inc.

v.

Illinois Pollution Control

Board,

140 Ill.Ap~.3d 283,

488 N.E.2d 639,

643

(5th Dist.

1986).

The

court noted

that

consistent with the primary goal of enhancing

the environment,

“settlements

that

do not

contain

a finding

of

violation but do impose

a oenaltv and a compliance

plan may more

ii 1-17

---

expeditiously facilitate

this enhancement.”

Id.

(emphasis

added).

This same conclusion was also

reached by the Third

District

in Archer Daniels Midland

v.

Pollution Control Board,

140 Ill.App.3d

823, 489 N.E.2d 887

(3d Dist.

1986), where

the

parties stipulated

to a penalty but not

to a

finding of

violation.

Although the cases discussed below involve contested

penalties,

the Chemetco case does present encouragement for

settlements involving penalty

issues,

which,

in general,

the

Board

favors.

The Allen Barry case

involves a Stipulation and

Proposal

for Settlement

as

to the violations

only,

and leaves

open the issue of

a penalty.

Discussion

of Penalty Determination

The Board believes

that,

in order

to properly address

the

penalty

issue

in

this

case,

a broad overview of Illinois,

federal

and some other

states’

penalty determinations

is necessary

to

guide the Board

in this,

and future decisions.

The following

discussion

is intended to articulate

the Illinois approach

to

penalties since

the Board has

at times

been faced with conflicts

among

the reviewing courts,

and the Illinois Supreme Court

has

not addressed the Board’s imposition

of civil penalties since

1978.

To summarize and clarify the current framework

for the

Board’s penalty decisions,

a comprehensive analysis will follow,

concluding with

a discussion

of how the

law applies

to

the facts

of

the Allen Barry

case.

This discussion will proceed

in

accordance with

the Table of Contents below.

These discussions

are intended only

to briefly summarize

the case law, and not

to

provide holdings or new interpretations of

those cases.

Table of Contents

I.

OVERVIEW OF ILLINOIS LAW ON CIVIL PENALTIES

A.

Illinois Supreme Court Cases

10

B.

Illinois

Appellate

Court Cases

15

1.

Air

Pollution

Cases

15

2.

Water

Pollution

Cases

21

3.

Permit

Violation

Cases

24

4.

Local

Government

Cases

31

C.

Penalty Factors Derived from Illinois Case Law

34

1.

Statutory Factors

35

2.

Good Faith

5

3.

Other Considerations

36

a.

Aiding Enforcement by Deterring Others.. .36

b.

Economic Benefit

from Noncompliance

37

c.

Ability

to Pay

38

d.

Cessation and Duration of Violation

40

D.

Summary Outline of Illinois Statutory and

Judicial Considerations

41

B.

Illinois Legislative

Intent

42

111—is

---

II. OVERVIEW OF FEDERAL LAW ON CIVIL PENALTIES

43

A.

Federal Statutory Considerations

43

B.

U.S.

Supreme Court Cases:

The Tull and Gwaltney Decisions

46

1.

The

Tull

Case

46

2.

The

Gwaltney

Case

48

a.

The

Gwaltney

Penalty

Calculation

49

b.

The Gwaltney Implication of a

Mandatory Penalty

52

C.

Other

Federal

Decisions

53

III.

PENALTY CONSIDERATIONS

IN OTHER STATES

59

IV. STATISTICAL DATA ON PENALTIES

63

A.

USEPA Statistical Data on Penalties

63

a.

Table

No.

1

64

Total USEPA Penalties

for 1989

b.

Table

No.

2

65

Selected

USEPA

Penalties

for

1988

All Regions

c.

Table

No.

3

65

Selected USEPA Penalties

for 1988

Region V Only

B.

Illinois Statistical Data on Penalties

66

1.

Pollution Control Board

a.

Table

No.

4

Summary of Penalties Assessed by

Illinois Pollution Control Board

2.

Illinois Court Decisions

67

a.

Table

No.

5

67

Illinois Civil Penalties

Reviewed by Supreme Court

b.

Table No.

6

68

Illinois Civil Penalties

Reviewed by Appellate

Court

3.

Recent Stipulated Penalties

69

a.

Table

No.

7

70

Recent Stipulated

Penalties

C.

Comparison of Federal and State Penalties

70

a.

Table

No.

8

71

Comparison of Federal and

State Penalties

b.

Table

Nc.

9

72

Comparison

of Federal and State

Average Penalties

V.

CONCLUSION:

RELEVANT FACTORS FOR BOARD

DETERMINATION OF THE CIVIL PENALTIES

IN THIS CASE

A.

Calculating

the Maximum Penalty

72

B.

Statutory Factors Which Must

be Considered

73

C.

Other

Factors

73

11 1-1~

---

—in—

71

PENALTY DETERMINATION FOR ALLEN BARRY

74

A.

The Maximum Penalty

74

B.

Consideration of Statutory Factors

75

1.

Character and Degree of Harm

75

2.

Social and Economic Value

75

3.

Suitability/Unsuitability of

Pollution Source to Its Locale

76

4.

Technical Practicability and EcOnomic’

Reasonableness of Pollution Control

76

5.

Economic Benefits of Non—Compliance

77

6.

Any Subsequent Compliance

78

C.

Other Factors

78

D.

Penalty Calculation

80

I.

OVERVIEW OF ILLINOIS LAW ON CIVIL PENALTIES

To provide

a framework

for appellate

review of

the Board’s

penalty decisions,

a summary of

a comprehensive list of

Illinois

Supreme Court and Appellate Court

cases follows.

A total of

42

cases are briefly discussed

in two sections:

(A)

Illinois

Supreme Court cases

and

(B)

Illinois Appellate Court

cases.

Each

case will be

referred to by

a numbering system,

(1

through

42J,

and the summary of each case will be captioned with

a heading

for

the case name.

The summary of each case

is intended as

a

reference point

for the Board’s discussion of P~na1tyFactors,

which begins on page

35 herein.

This survey of Illinois Cases

begins with a 1974 Illinois Supreme Court decision and continues

through early

1990 decisions.

The outcomes

in

a number of these

decisions would have been impacted by subsequent

statutory

amendments

to Sections

33 and

42

of the Act.

However,

the cases

are presented

from

a historical perspective and not

in

terms of

precedent

for the Board’s decisions.

The new legislative

directives

to the Board are discussed separately

in the section

labeled “Illinois Legislative Intent.”

Cases which predate

the

amendments,

therefore,

must be viewed

in

the time frame

in which

the courts

issued those opinions.

A.

Illinois Supreme Court Cases

(1

The City of Waukegan Case

The Illinois Supreme Court

first acknowledged the Board’s

authority

to impose monetary penalties

in

1974.

See City of

Waukegan

v.

Pollution Control Board,

57

Ill.2d

170,

311 N.E.2d

146

(1974)

affirming

fines

of

$1,000,

$250 and $250.

In

that

refuse disposal

case,

the court determined

that penalties are

constitutional and consistent with

the state goal

to preserve and

improve

the environment,

and that Section

33(c) provides protec-

tion against arbitrariness and serves

to guide

the Board

in

imposing penalties.

However,

the Illinois Supreme Court

later

noted

that,

“(obviouslv

the General Assembly did not

intend

that

the Pollution Control

Board should moose

a monetary fine

in

111—20

---

every case of

a violation of

the Act or

regulations.”

Southern

Illinois Asphalt Co.

v.

Pollution Control

Board,

160

Ill.2d 204,

326

N.E.2d

406,

408

(1975)

(described

in detail

infra)

(Case No.

4.

(2

The City of Monrnouth Case

The guiding ~principle articulated by the Illindis Supreme

Court

is that civil penalties should aid enforcement

of

the Act

and

that “punitive considerations were secondary.”

City of

Monmouth

v.

Pollution Control Board,

57 Ill.2d

482,

313 N.E.2d

161,

166

(1974).

In

this

1974 air pollution case involving

emissions from the City of~Monmouth’s sewerage lagoon system,

the

Supreme Court

of Illinois

found that

a $2,000 penalty could

not

aid enforcement where

the city cooperated with

the Agency and no

technological netr~oc .ias aia.~aoe to effect~ve~ic.~-et~e

problem.

Various attempts were made,

but none resolved the

violation until after enforcement proceedings

began.

The Supreme

Court concluded

that since

“the City,

at substantial expense,

cooperated

in

the implementation of every proposal,

and that

through the City’s efforts

the problem appears

to have been

solved,

we hold that

the Board erred

in imposing the

fine.”

City

of Monmouth

v.

Pollution Control Board,

313 N.E.2d at

166.

(3

The Incinerator,

Inc. Case

In the case of

Incinerator,

Inc.

v.

Pollution Control Board,

59

Ill.2d 290,

319 N.E.2d 794

(1974),

the Illinois Supreme Court

upheld civil penalties of $25,000

for air pollution violations

resulting from refuse

incinerator operations.

Substantial

amounts

of flyash, heavy

smoke emissions and foul odors

unreasonably

interfered

with

the enjoyment

of

life and property

in the area,

in violation of

the Act and rules and regulations.

Corrective measures were not technically impracticable or

economically

unreasonable.

The Board was

found

to have properly

evaluated the unreasonableness of

the interference

in

licht of

Section

33(c)

ractors,

altnougn,

in

tne

tuture,

tne Boarc was

instructed

to be more specific

in making written findings as

to

the criteria

in Section

33(c)

of the Act.

The Incinerator court referred

to the Board’s review

of key

facts

relevant

to Section

33(c)

factors

in

its decision

to upnoid

the Board’s assessing

a S20,000 penalty.

The harm

to

the public

was found

to

be

a

substantial

interference

with

the

enjoyment

of

life and property over an extended period

of

time.

The social

and economic value of

the pollution source was evaluated

in terms

of

alternative available incinerators and disposal facilities,

the time

required

to obtain and install

pollution control

equipment,

and the

impact of

a close down on

the

23 employees

affected.

Regarding

the suitability or unsuitability of the

pollution source

to

its locale, evidence on zoning,

uses of

prooertv

in

the area,

and the nature of

nearby industries was

considered.

The Board also heard testimony on

the number

of

111-21

---

—12—

homes and buildings which predated the facilities,

as well as

those constructed later.

Another

important factor was

the

availability

of technically practicable,

although not

fully

perfected,

devices

to eliminate the air pollution problem and a

clear ability

to pay for

this

equipment.

The Supreme Court was

not persuaded by appellant’s arguments that

the pollution control

systems were either technically impracticable or economically

unreasonable.

The Board’s consideration of

these’ factors

amounted

to substantial compliance with the Act’s requirement

that Section

33(c)

criteria be analyzed

in Board determinations

in enforcement cases.

An additional

$3,000 penalty for failing

to file

a

required plan

for reducing emissions

was

affirmed

as

being neither arbitrary or excessive.

4~

The Southern :llinois Asphalt Company Case

In Southern Illinois Asphalt Co.

v.

PCB,

60

Ill.2d

204,

326

N.E.2d

406

(1975)

(two cases consolidated),

the :llinois Supreme

Court held

the penalties

inappropriate as abuses of

the 2oards

discretion.

The court

found

that the penalties would not aid

enforcement,

but were punitive.

In

the

first case

ir.volving

a

$5,000

fine for violation of air pollution permit requirements,

the appellant had ceased its asphalt plant operations prior

to

the Agency’s filing of

the complaint.

Furthermore, when

it d~d

operate, although lacking a permit,

the plant operated within the

Board’s emission standards.

The failure

to obtain

a permit was

inadvertent and

in good faith reliance that

the

installer

of

its

pollution control equipment had applied for and obtained a

permit.

In the second case,

involving

a $11,000 penalty

for water

pollution from cyanide discharges

from

an. auto parts

manu-’

facturer,

the court

found that

the violations ceased

five months

prior

to

the filing of

the comolaint.

Furthermore,

the company

“had been diligently trying

to bring

its operations

into

conformity... and was not dilatory or

recalcitrant.”

The penalty

was

held

“purely punitive’

under these circumstances.

Southern

Illinois Asphalt,

326 N.E.2d at

412.

The court concluded as

to both cases

that

‘the General

Assembly intended

to vest

the Board with broad discretionary

powers

in

the imposttion

or

civiL penaltIes

;

nowever,

the

recorc

showed

“substantial mIt~gat:ngcircumstances” wn~cn requtrec tcat

no penalty be imposed.

Southern

Illinois Asohalt,

326 N.E.2d

at

409.

Both cases

involved occoerative efforts and violaticns

which ended well before

the filing of

tne complaints.

The court

found,

therefore,

that

the penalties could not aid enforcement

of

the Act.

While acknowledging that

the Board has discretionary

authority

to levy civil penalties

in enforcement cases,

the

Supreme Court offered

a

note of caution.

‘Implicit

in

the grant

of

the discretionary authority

to impose monetary c~vi1penalties

in varying amounts

is

the

reouirement

that

the sever itv of

the

11 1—22

---

penalty should bear

some relationship to

the seriousness

of the

infraction or conduct.”

Southern Illinois AsDhalt,

326 N.E.2d at

408.

This directs

the Board

to consider

the overall significance

of

the violation as part of

a penalty determination.

(5

The Mystik Tape Case

In Mystik Tape,

Division of

Borden.,

Inc.

v.

Pollution

Control Board,

60

I11.2d 330,

328 N.E. 2d

5

(1973),

an

air

pollution

(odor) case,

a $3,500 cenalty was uoheld by

the

Illinois Supreme Court.

Mystik was found

to have violated

the

Act and rules and regulations by installing certain equipment

after

it had

beer. denied permits

for doing

so.

The ~erm:t

violation warranted

a penalty since

tne

facts were un1~ke those

of Southern Illinois Asphalt

(Case

No. 4,

where one company

showed good faith and

its failure

to obtain a permit was purely

inadvertent.

Also,

Mystik’s behavior was not analogous

to

that

of the other company

in Southern Ill:n.ois Asphalt,

Case

No.

4,

whose conduct was not dilatory or

recalcitrant.

Although

the

case was remanded to the Board

for reconsideration of

the alleged

air pollution violation based on the

factors set

forth

in Section

33(c),

the penalty was upheld

for the clear violation of the

relevant permit requirements.

Citing

to Incinerator,

Inc.

Case

No.

3,

the court

found that

the penalty was not arbitrary ~r

oppressive.

The court also reaffirmed

“the power

of the Board

to

impose civil

penalties primarily as

a method

to aid enforcer~ent

of the Act,” citing Southern Illinois Asphalt,

Case

No. 4L

and

City of Monmouth,

(Case

No.

2.

Mystic Taoe,

328 N.E.2d at

10.

Without

a detailed discussion

as

to how the penalty would

aid enforcement

or

how each factor

of Section

33(o)

applies~to

the failure

to obtain oerm~ts, the Mvstik Taoe court affirmed the

penalty

for the permit violation.

The

Mvst:~

?aoe court

noted

that Mystik applied for permits

for:

(I) odor—ccun:eracr.ant

devices and

(2)

a spreader.

The Agency denied

the permits

because

the former

equipment was believed

to only mas-~. tre odors

and

the

latter

equipment

was

considered

a

potential

source

of

pollution needing pollution control devices.

The penalt

issue

in

this case

thus seems

to relate

in part

to whether

there

is an

aooarent risk

of oresent or future air collution.

Tnis

is

in

contrast

to

the mere technical comoliance

with oCrm~t

requirements sought

by

the Agency

in

the case of Southern

Illinois .Asohalt,

Case

Nc.

4,

where

air

oollution

was

not

an

issue.

Mvstik

:nstalled

tne ecu~omentdesotte

the per—~~~it

denIals

and,

therefore,

the

fine was not arbitrary

or oppressive

since

the permit violation was knowing,

and not

an.

inadvertent failure

to meet

a technical

recuirement.

6

The Metropolitan Sanitary District Case

The Illino:s Suoreme Court reiterated

the theme

of aiding

enforcement of

the Act

in another

1975 case.

In

that

case,

the

111—23

---

_1

,1~_

Metropolitan Sanitary District of Greater Chicago independently

initiated plans

to construct compliant facilities

to cure water

pollution problems.

The district had not been “dilatory

or

recalcitrant.”

It “fell victim to inter—agency conflicts

(i.e.,

extensive negotiations with

the Northeastern Illinois Planning

Commission and the Sanitary District of Elgin)

resulting

in

delays which made

it impossible.. .to prevent

the violations...”

Under

these circumstances,

the penalties totaling $~,000were

found to

be “purely punitive” and not

an aid

in enforcement

of

the Act.

Metropolitan Sanitary District v.

Polluti~onControl

Board,

62 Ill.2d 38,

338 N.E.2d 392,

397

(1975).

(7

The Processing

&

Books,

Inc.

Case

The Illinois Supreme Court upheld

a $3,000 penalty

in

a 1976

case involving air oollution from odors emitted

from an egg and

poultry

rarm.

Processing

&

Books,

Inc.

v.

Pollution

Control

Board,

64 Ill.2d 68,

351 N.E.2d 865

(1976).

The court

found

that

the Board decision predated

the court’s decision

in Incinerator,

Inc.,

(Case No.

3,

and,

therefore, although

the Board did not

make specific findings on each of the

(then

four)

fdctors

in

Section

33(c)

of

the Act,

this did not warrant reversal since

the

Board’s order made clear

that each factor was considered.

The

court found that,

for more than one mile outside the farm,

“respondents seriously interfered with the enjoyment of life and

property

in ways which could have been prevented.”

~

Books,

Inc.,

351 N.E.2d at 870.

The court

noted

that

the

operation had substantial social and economic value.

However,

the great increase

in

the size of

the operation,

the related

negative impact on the area,

and the availability of corrective

measures

(which

respondents did not begin

until after

the

complaint was

filed),

supported the Board’s finding that

a

penalty was apDropriate.

(8

The Wells Manufacturing Company Case

The 1978

case of Wells Manufacturinc Comoanv,

73

Ill.2d

226,

383 N.E.2d

148

(1978),

involved a S9,000 penalty for alleged

odor—related

air pollution emitted from an

iron foundry.

In

a

detailed analysis of Section 33(c)

factors,

the Illinois Supreme

Court reversed

the Board’s decision as being against

the manifest

weight of the evidence.

‘The court described

the task of

eva1uat~ng a Section

9(a)

air pollution case

in

terms of

a

balancing

test.

“The Board must balance

the costs and beneftts

of abatement

in

an effort

to distinguish the

trifling

inconvenience,

petty annoyance or minor discomfort

fror~ia

substantial interference with the

enjoyment

of

life and

property.”

Wells Manufacturing Comoanv,

383 N.E.2d at

150,

citing Processing

& Books

Inc.,

Case

No.

7.

Section

33(c)

must

be used

to guide

the Board

in

this determination.

111—24

---

The Supreme Court

found

that much evidence had been

developed below concerning

the character

and extent of

the harm

pursuant

to Section 33(c)(i).

The Board focused on citizen

testimony and concluded

that

the “odors

‘unreasonably interfered

with the enjoyment of life and property’

.“

Wells Manufacturing

Company,

383 N.E.2d at

152.

Regarding Section

33(c)(ii),

the

company indisputably was making

a major

social and economic

contribution by employing approximately 500 persons ‘and supplying

parts

to numerous industries.

Section

33(c)(iii),

involving the

appropriateness

of the pollution source

to its locale raised

several areas of dispute.

Although the Supreme Court agreed that

the company’s “priority of

location does not achieve the

level of

an absolute defense,”

i~t was “impressed with

its significance’

here.

Wells Manufacturinc Comoanv,

383 N.E.2d at

152.

The

nearby residential area and

hign. school were develcoed

later with

notice that the adjacent area was zoned

for heavy—industrial

use.

The hiçh school was even built on

land accuired from

the

foundry.

Expansions

to

the

foundry

were

made

after

the

school

was

constructed

and after

some homes were built.

The court held

that this weighs against

the priority of location argument but

that the proof

that emissions had increased

was insufficient

to

meet the Agency’s burden on

this point.

The final criteria

in

Section

33(c)(iv)

regarding

the technical practicability and

economic

reasonableness of pollution controls ultimately Favored

the company.

Financial considerations were not at

Issue.

Hbwever~ the court held

that

the Agency had the burden

“to come

forward with evidence

that emission reduction

is practicable

Wells Manufacturing Company,

383 N.E.2d at

153,

and conflicting

expert testimony on three methods

of abatement and

•an inadequate

record on

a fourth method defeated Agency assertions

of

tech~’nical

practicability.

The court concluded that

these

factors,

tak~en

together,

did not establish

the unreasonableness

of

the odocs.

Hence,

no violations

had occurred and the penalties were

inapproor iate.

B.

Illinois Appellate

Court Cases

1.

Air Pollution Cases

Air pollution violations

involving Section

9 of

the Act have

been

the subject

of many contested penalty cases.

These case~

may be subdivided somewhat

into the

two types of violations

covered

by Section

9(a) based on

the

alternative

definitions

of

air pollution offered

in Section 3.02.

That section defines

air

pollution

both

in

terms

of

injury

and

in

terms

of

inteçference

with life

or property as follows:

“AIR

POLLUTION”

is

the

presence

in

the

atmosphere

of

one

or

more

contaminants

in

sufficient

quantities

and

of

such character-

istics

and

duration

as

to

be

in,~urious to

human,

plant,

or animal

life,

to health,

or

to

property,

or

to

unreasonably

interfere

with

the enjoyme~ of

life or property.

111-2S

---

—,

Section

3.02

of the Act

(emphasis added).

(9

The Allied Metal Company Case

Allied Metal Co.

v.

Illinois Pollution Control Board,

22

Ill.App.3d

823,

318 N.E.2d 257

fIst Dist.

1974) was an early air

pollution case where

a $2,500 penalty was appealed.

The fine had

been imposed for violations

of Section

9(a)

of the Act,

particulate emission regulations and permit recuirements.

The

court reversed the Board’s decision finding Section 9(a) and

emission violations

as being against

the manifest weight

of

the

evidence.

Furthermore,

the Board had failed

to consider the

“reasonableness’

factors

of Section

33(c), which

thts

court held

to

be mandatory

to estabiish:ng these violations.

The permit

violation

for

construction

of

a

potential

emission

source

was

upheld and on that issue

the court remanded

for

redetermination

of

the penalty.

For

tne permit violation

alone,

the Board

reassessed

the penalty at

$750 upon remand.

(101 The Sangamo Construction Company Case

In Sancamo Construction Company

v.

Pollution Control Board,

27

Ill.App.3d 949,328

N.E.2d 571

(4th Dist.

1975),

the court

affirmed the finding of

a violation of Section 9(a)

for odors and

dust emanating

from petitioner’s asphalt and concrete plants and

for operating without

a permit.

The Fourth District extended the

Supreme Court’s rationale

in.

Incinerator

Inc.,

(Case

No.

3,

which held

that air

pollution causing interference must be

considered

in light of Section 33(c)

factors before

a violation

is established.

The district court held

that both

tvoes of

air

pollution violation must

be proved through an analysis of Section

33(c)

factors.

Sanca:mo Construction,

328 N.E.2d

at

575.

The

court stated that the Board correctly found

a Section

9(a)

violation,

but finding

that only one plant had operated without

a

permit,

remanded for

reimposition

of

the

fine.

A $5,000

fine had

been imposed

for

the three violations, and on remand

to the

Board,

the fine was reduced

to S4,000.

The Sangamo case approaches Section

33(c)

as part

of

the

proof

of

a Section 9(a)

violation.

However,

as discussed below,

in

the Aluminum Coil Anodizinc case,

40

Ill.Aoo.3d

785,

31S

N.E.2d

612,

615

(2d D~st. 1976)

Case

No.

111,

some courts have

found

that Section

33(c)

is

part

of

the penal:’; determination and

not part

of

the proof of

a Section

9(a)

air polluticn vLolation

where harm

or

injury occurred.

11

The Aluminum Coil Anodizing Corooration Case

In a 1976 odor

case,

involving

the first

type of

Section

9(a) air pollution violation,

the Second District upheld

a $1,500

penalty against

an anodizing pant.

The court observed

tnat

th:s

1 11

—

20

---

violation, which was injurious

in

its effect,

involves

a

different burden of proof

than air pollution which intrudes on or

interferes with

life.

“By

its terms proof of

the essential

elements of air pollution of

the first

type set forth

by section

3(b) does not

require any showing

by the complainant of

the

unreasonableness of

the emissions

involved,

in contradistinction

to air pollution of the second type set forth

in section

3(b)

Aluminum Coil Anodizing Corporation

v.

Pollution Corftrol Board,

40 Il1.App.3d

785,

315 N.E.2d

612,

615

(2d Dist.

1976).

In this

case,

the company’s

emissions were associated with

foul odors,

various health ailments,

and property damage.

Air pollution of

the first type was established based

or. testimony regarding its

injurious effects including instances

of breath:ng difficulties,

headaches,

couching,

and eye Irritations;

spotting

on. aluminum

doors and plants

in

the area;

and deterioration of

a nearby

roof.

The court

found

that

the Board’s opinion

reflected due

consideration of Section 33(c)

factors.

The court

noted

that

the

company’s not having

received complaints might

be

a m:ticatin.g

factor.

However,

the record also showed no good faith efforts

to

achieve compliance between

the date of

the complaint and

the

closing

of

the plant

over one year later,

despite available

technology

to control

the odors.

The penalty, therefore,

was

appropriate,

and not excessive and would “serve

to aid

in the

enforcement

of

the Act by working to secure voluntary compliance

with

the

Ac,t

in other

cases,

especially

by ACA at

its new

facility.”

Aluminum Coil Anodizing,

315 N.E.2d at 619

(emphasis

added)

12

The Lloyd

A. Fry Roofing Company Case

In

1974,

the First District affirmed the finding of

a

violation.

in the nature of

the second type of

air pollution,

that

is, unreasonable interference with

life and property

in

a case

involving smoke and odors

from an asphalt

roofing plant.

Lloyd

A.

Fry Roofing Comoanv

v.

Pollution Control

Board,

20

Ill.App.3d

301,

314 N.E.2d 350

(1st

Dist.

1374).

Headaches,

nausea,

and eye

and throat

irritations were associated with

the emissions.

The

court

found

that evidence regarding Section

33(c)

factors was

sufficient

to supPort

the Board’s

findings.

Besides

the

impact

above,

the Board heard evidence on

the operation of

the plant,

the presence of other pollut:on sources

in

the area,

and,

notably,

the availabilit

of pollut:on control devices

to asphalt

plants

in general and their

usage at petitioner’s other

plants.

The court affirmed the

Section 9(a)

violation,

but

the case was

remanded

for reconsideration

of

tn.e S50,000 ocralty since

the

court

reversed

tne Board

s

f:n.c:ng or

a v:olaticn or

the

~oaro

s

rules and regulations.

On

reconsideration,

the Board assessed

a

reduced penalty of $10,000.

111-27

---

l33 The Bresler

Ice Cream Company Case

In contrast with

the Lloyd

A.

Fry Roofing case

(Case No.

12,

a number of cases involving the second type of

Section 9(a)

violation

(i.e.,

interference) were decided by the appellate

courts with

the conclusion

that civil penalties should not

be

sustained.

In Bresler

Ice Cream Company

v.

Illinois Pollution

Control Board,

21 Ill.App.3d

560,

315 N.E.2d 619

(lit Dist.

1974),

the court

found

that an air pollution violation

in

the

naçure of unreasonable interference with the enjoyment

of life or

property resulted from the release

of

flyash and odors

from

Detitioner’s incinerator.

However,

the record did not suoport

the $1,500 penalty since petitioner ultimately carried

the burden

of proof

as

to mitigating circumstances.

Notably,

the company

showed good faith

in.

volun.taril’i attemotinc

to abate

the

pollution.

in terminatinc use of

the incinerator orior

to

the

corola_-’t

bc_np

i_ec, a~o

ac~ee~gto

re:~ar~

:ron futur:

use.

The violation was held

to

be

“de minimus,”

with

no impact

on health.

The

facts stipulated

to by

the parties

“evince

a

sincere desire

...

to cooperate...

This attitude should have

been noted and encouraged

by

the Board.”

Bresler Ice Cream,

315

N.E.2d at

621.

As

a further

note,

the court compared

the subject

penalty

to a $1,000 penalty levied

in another

case

for solid

waste dumping violations which posed health

risks.

It concluded

that petitioner’s case was a

far less serious situation

for which

the Board

imposed

a disproportionate penalty.

The court gave

a

clear

signal to

the Board to

look

for violator’s good

faith

conduct and for consistency

in

its disposition of

penalty cases.

(14

The Chicago Magnesium Casting Company Case

The First District reached

the same conclus:on

in. anotner

197~air pollution

case. involving

a $1,000

fine

for ocors

generated by a

foundry.

The court

found

that

the company had

worked with

the county agency, conducted studies, attempted

to

mask the odors, and then abandoned the offending chemical six

months before the complaint was filed.

Although a Section

9(a)

violation was found,

the court

held that

a oenaltv would not aid

enforcement of the Ac: given tne coooerat~veetforts

snown,

tn.e

lack of

reasonable means

to control odors

prior

to the company’s

use of

a new cnemical,

and the

fact

that compliance was acnieved

six months prior

to the complaint.

Chicago Macnesiun Cast:nc

Comoany

v.

Illinois

Pollution. Control Board,

22

ll.Apu.3d

489,

317 N.E.2d

689 (lstD:st.

1974).

2

The court

noted,

however,

that “economic reasonableness and

technical practicability are but two factors

to be considered

by

the Board

in determining whether

or

not the Act has

been

violated.”

Chicaco Macnesium Castinc,

317

N..E.2d at

632.

These

do

not

rise

to

the

level of

a coriolete defense.

111—28

---

(15

The CPC International,

Inc. Case

CPC International,

Inc.

v.

Illinois Pollution Control Board,

24

Ill.App.3d

203,

321 N.E.2d

58

(3d Dist.

1975)

represents

another Section

9(a) air pollution

case,

this

time involving

regulatory standards

for particulate

levels.

In

this

case,

the

Third District found

that

a viol~tionoccurred, but ‘the $15,000

penalty assessed by

the Board was vacated.

As

in Bresler

Ice

Cream,

(Case No.

13,

and Chicaco Magnesium Castina,

Case

No.

14,

the petitioner acted promptly

to correct

the problem.

The

violations were minor

and were remedied before

the Board’s

decision.

The penalty was arbitrary and excessive wnen compared

to three prior

Board decisions

imposin.9 fines of $3,000

to

$10,000

“for

violations

whicn

were

deliberate

and

long—term.”

CPC International,

Inc.

321 N.E.2d at

61.

The court

also

observed

that three adjacent industrial plants had received

variances and emitted higher levels

of particulates

than

the

petitioner,

and that

this should be

a major consideration in

a

penalty determination.

This,

too,

bears on

the court’s

evaluation of the Board’s even—handedness

in penalty

cases.

(161 The Arnold

N.

May and Hillview Farms,

Inc.

Case

In a 1976 case involving odors

from the application of

sludge and feedlot wastes

to farmland,

a penalty was again

vacated on appeal.

In Arnold

N. May and Hillview Farms, Inc.v.

Pollution Control

Board,

35 Ill.Apo.3d 930,

342 N.E.2d 784

(2d

Dist.

1976),

the Board’s findings

of violations of both types of

Section

9(a) air pollution and Section

12(b)

water pollution

permitting requirements were upheld.

However,

the S2,500 penalty

was vacated as

being against

the manifest weight of the evidence

and not an aid

in enforcement

of the Act.

The court disagreed

with the conclusion

which

the Board drew from

its analysis of

Section

33(c)

factors.

The court

noted

that

the Board

found

minimal impact

on health and the environment.

Furthermore,

the

court

found

that

the Board’s emphasis on

“discomfort and

inconvenience caused to neighbors over

a

long period

of

time”

from the offensive odors

could not support

a penalty when

the

remaining three of

the four Section

33(c)

factors

favored the

petitioners.

(171

The Draper and Kramer,

Incorporated Case

In

the case of Draper and Kramer,

Incoroorated

v.

Illinois

Pollution Control

Board,

40

fll.Aop.3d

918,

353 N.E.2d

106

(1st

Dist.

1976),

the court reversed both

the violation.

of Section

9(a) and the $1,000 penalty

for the alleged discharge of

a

toxic

mist from petitioner’s cooling

tower.

The emissions were said

to

result

in

eve,

ear,

nose,

throat and skin irritations.

However,

the court

round

that

the cescr~oedinter:erence w~tnl~:ecouid

not

be attributed conclusively

to petitioner’s equipment.

The

111-2

---

court

noted

that use of

the chemical purportedly responsible was

discontinued,

but the physical complaints continued

for almost

nine more months.

Petitioner also

took prompt and cooperative

action to prevent any further

release of

the spray upon learning

at hearing

that

the sPray itself, and not just

the chemical, was

objectionable.

Neither

the record nor

the complaint had

previously focused the violation on other than

the one

chemical.

The court concluded that,

under

these cir’cumstances,

the penalty could not aid enforcement

of

the Act.

181

The Marblehead Lime Company Case

Contrasting with the above cases,

a penalty of $20,000 was

affirmed

in a

1976 case

for a Section 9(a)

air oolluticn

violation ;h~o~unreasonably ~nterferec

~_th life a~’corooerty

In

Marblehead

Lime

Comoanv

v.

Pollution

Control

Boaro,

42

Ill.App.3d

116,

355 N.E.2d 607

(1st

Dist.

1976), petitioner’s

lime manufacturing plant subjected area residents

to constant

fallout of dust which blanketed nearby property indoors and

outdoors and caused skin,

eye and throat irritations and

breathing problems.

The court concurred with the Board’s

evaluation

of Section

33(c)

factors,

noting several mitigating

factors.

In finding no abuse

of the Board’s discretion

to impose

a penalty,

the court highlighted the extent

of

the negative

impact of

the pollution and the availability of

“housekeeping and

maintenance”

alternatives

to control

it.

“The penalty was

imposed after extensive hearings which indicated that petitioner,

for

a long period of time,

had i~terferedwith the enjoyment of

life and property

in ways

that reasonably could have been

avoided.”

Marblehead Lime,

355 N.E.2d at 612,

613.

Thus,

as. in

Lloyd A. Fry

?.oofinc,

(Case No.

12,

the accessibility of

pollution control procedures or equipment weighs heavily

in favor

of

a penalty.

(19

The Hillside Stone Corporation Case

In another

case’ involving

the second type

of air pollution,

the First District reduced

a penalty from $10,000

to S2,000.

In

Hillside Stone Corporation v.

Illinois Pollution Control Board,

43

Ill.App.3d 158,

356 N.E.2d

1098

(1st Dist.

1976),

the

unreasonable

interference with

life and property due

to heavy

dust emission from the limestone quarry was much

like

that

in

Marblehead

Lime,

(Case

No.

18.

After affirming

the finding

of

the violation based

on sufficient evidence on

the Section

33(c)

criteria,

the court agreec with

tne pet1t~oner tnat

tne fine was

excessive.

Evidence that oetitioner

nad taken substantial steps

to control

emission, had spent S600,000

to control pollution, and

had already

paid

a $10,000

fine as

a result of

a suit

by the Cook

County Department of Environmental Control persuaded

the court

to

reduce the

fine

to S2,000.

This amount was considered “adequate

to

aid

enforcement

of

the

Act

and

as

a

warning

to

Hillside

of

the

necessity properly

to maintain its equipment and to avoid delay

11 i—3~

---

in the filing of a corporate approved plant

for compliance.”

Hillside Stone,

356 N.E.2d

at

1102.

20

The Joliet Railway Equipment Company Case

In

a

1982 case involving air pollution and open burning

in

violation of Section’ 9(a) and

(c),

the Third Distridt court

upheld

a $10,000 penalty assessed,

not by the Board, but

by the

Circuit Court of Will County.

P~oole of

the State of

Illinois v.

Joliet Railway Ecuioment Co.,

108 Ill.App.3d

197,

483 N.E.2d 1205

(3d Dist.

1982).

Although

the case was remanded with respect

to

injunctive

relief granted~ the lower court’s penalty was affirmed

as being supported

by

the evidence.

The record included

testimony of dizziness,

vomiting,

r.ausea,

headaches,

and tearing

of

the eyes

in conne~tionwith

a fire at petitioner’s salvage

yard.

The reaular coerations resulted in reoeated instances of

fires and of toxic

fumes

emissions.

2.

Water Pollution Cases

(21

The Meadowlark Farms,

Inc.

Case

In a .1974 water pollution case,

the Board assessed

a minor

$141.66 penalty against

the owner of surface

rights

in land on

which coal mining refuse piles produced seepage containing acid

mine drainage.

Meadowlark

Farms,

Inc.

v.

Illinois Pollution

Control

Board,

17 Ill.App.3d

851,

308 N.E.2d

829

(5th Dist.

1974).

The seepage entered

a tributary of

a larger stream,

resulting

in periodic fish kills

from the contaminated

flow.

The

$141.66 penalty was assessed

for the value of

the fish kill,

and

not unde,r

the Board’s discretionary powers

to assess penalties

of

up to $10,000

per violation and $1,000 per day.

However,

the

court determined an imoortant enforcement

issue,

finding

that the

owner of

the water pollution source need

not

be shown

to have

created the hazard nor

to have had knowledge of

the discharge.

“The Environmental Protection. Act

is malum prchibitum~ no proof

of guilty knowledge or mens

rea

is necessary

to

a finding

of

guilt.”

“(Kinowledge

is not an element of

a violation of Section

12(a)

and lack

of knowledge

is

no defense.”

Meadowlark

Farms,

308 N.E.2d at

837.

22

The Freeman Coal Mining Corporation Case

Citing Meadowlark

Farms,

(Case

No.

21,

the Fifth District

again found

a water poll~itionviolation where

a mine refuse pile

on petitioner’s

land produced acidic runoff

in

the case of

Freeman Coal

Mmmc

Corooration

v.

Illinois Pollution Control

Board,

21

Ill’.Aop.3d

137,

313 N.E.2d 616

(5th Dist~ 1974).

The

court held

that the water pollution threatened

the health and

welfare

of

the surrounding

residents, may have made nearby crop

land unproductive, and seriously impacted the fish and insect

111-31

---

po~ulationof

the stream and adjacent vegetation.

The totality

of circumstances,

however, did not

support the

$5,000. penalty

assessed by

the Board.

The court reduced the penalty

to $500

based on numerous mitigating circumstances,

including

petitioner’s efforts and expenses to control

the pollution

through a water treatment system,

the Board’s use of a

performance bond

to ensure compliance, and the disproportionate

size of the penalty compared

to the less

than $200 penalty

in

Meadowlark Farms,

Case

No.

21.

23

The Allaert Rendering,

Inc. Case

Water pollution violations and

related permit violations

were

the subject of an appeal

in Allaert Renderin~ Inc.

v.

Illinois Pollution Control

Board,

91 Ill.ApP.3d

153,

414 N.E.2d

492

(3dDist.

1980).

The Board assessed

a S3,000 penalty

in

Connection with

the wastewater treatment system of petitioner’s

rendering plant.

Petitioner’s highly contaminated lagoons

created

a hazard of water pollution

to surface waters

from.

flooding.

The court

held

that

it was not necessary

to show

actual pollution had already occurred since Section 12(a)

of

the

Act prohibits

the threat of contamination.

Flooding,

which was

shown

to have previously occurred,

could reoccur.

The court also

found that

the lagoons were

illegally constructed and operated

without permits.

Given

the environmental risks and the five—year

history of delayed compliance with the Act and regulations,

the

court approved

the penalty

in

a cursory statement,

noting

that

“(the

Board stated

that

it

found

the amount of

the

fines

to be

‘...

the minimum necessary

to ensure future compliance...’”

Allaert Renderinc,

414

N.E. 2d

at

497.

The court affirme.d

the

penalty, T~tding

no abuse of discretion

in either

its imposition

or amount.

(24

The Archer Daniels Midland Case

In Archer Daniels_Midland

v.

Illinois Pollution_Control

Board,

119 I1l.A~o.3d 428,

456 N.E.2d 914 (4thDist.

1953)

Case

No.

24a,

petitioner aooealed a sizable $40,000 oenalty imposed

for water

pollution and NPDES permit violations, which resulted

in fish kills and oily scum problems at

a nearby

lake.

Contami-

nation resulted from storm water discharges carrying organic

material from petitioner’s

soybean and corn germ extraction

plants and vegetable oil

refinery.

The Board assessed a $40,000

penalty after

hearing evidence on

the environmental

impact

on

violations occurring from

1976 through

1981,

on petitioner’s

efforts and $4,500,000

in expenditures

for pollution control,

on

an Agency calculation of possible savings

from non—compliance

ranging from about

S53,000

to $108,000,

and on other factors such

as

the social and economic value of

the pollution source and its

suitability

to

the area.

On appeal,

the court

remanded the case

for

redetermination

of

the penalty.

The court

found that’the

Board erroneously

relied on evidence of

the savings

to

111-32

---

petitioner,

which the court believed was based on spurious

assumptions and lacked adequate foundation.

At hearing,

the

Agency’s witness

testified

that he used computer generated

calculations, based on USEPA’s “Noncompliance Penalty Formulae,”

which ultimately were too complicated to explain.

Also,

in

response

to theBoard’s assertion

that $40,000 was

de minimus

given petitioner’s financial strength,

the court

stated:

We are

not

aware

of any authority which

makes

the

ability

to

pay

the

proper

basis

for

a

civil

oenalt’, and

in

the case

of

a multiolant

corooration,

it

ignores

any

internal

accounting

system wh~cn mignt

attr~oute tne

entire penalty

to one profit center.

Archer Daniels Midland,

456 N.E.2d at

99.

The court

then distinguished Wasteland

Inc.,

118 I11.Aop.3d

1041,

456 N.E.2d 964

(3d Dist.

1983),

Case

No.

34,

which gave support

to

a penalty which reflected savings from noncompliance.

That

case focused more on

the violator’s “continuing blatant

disregard”

of environmental

laws,

which

this court believed

contrasted substantially from the.facts

here.

The court went on

to emphasize

that

the Board inadequately considered the major

efforts and $4,500,000

in expenditures

already made and the

willingness of petitioner

to spend another $1,000,000

if that

would remedy

the problem.

On

remand,

the Board

imposed

a $32,500 penalty, after

rejecting

a $15,000 settlement proposed by

the Agency and

petitioner.

That decision was appealed, and

in Archer Daniels

Midland

v.

Pollution Control Board,

149 Ill.App.3d

301,

500

N.E.2d 580

(4th Dist.

1986)

(Case

No.

24b,

the court

reduced the

penalty

to $i5,000~

The court based

this decision on

the

substantial mitigating

factors,

including

the large sums spent,

and

to be spent,

towards compliance, good faith

in

reporting the

violations,

and value to

the community.

The court believed

“$15,000

is adequate to aid

in enforcement of

the Act and

to

serve

as

a

deterrent

to

ADM

against

future

violations.”

Archer

Daniels Midland,

500 N.E.2d at

584

(4th Dist.

1986)

Case

No.

24b

(emphasis

added).

Noticeably,

the

court

limited

the

scope

of the deterren.t

effect

to

this petitioner only,

and concluded

that

a much smaller penalty

than

the Board assessed would achieve

that

end.

(25

The Russell Perkinson, d/bia Porkville Case

In

a case involving

the discharge of

liquid swine waste

into

a stream,

the Third District upheld a SlO,000 penalty as well

as

an additional

$10,376

for the value of 101,219

fish killed.

Russell

Perkinson., d~b/aPorkville

v.

Illinois Pollution Control

Board,

135

Ill.Dec.

333,

543

N.E.2d

901

(3d

Dist.

1989).

In. 1983

and

1984 petitioner’s swine

farm,

which

had experienced prior

Ii 1—33

---

—.J

seepage problems with its waste lagoons,

discharged waste

to an

adjacent field where drain

tiles connected

to a discharge pipe

carried

the waste

into

a stream.

The Board assessed respective

fines of $10,000 and $1,000

for 1983 and 1984 violations

of the

Act,

rules and regulations and NPDES permit conditions requiring

notification of any discharge.

Costs assessed

for the 1983 and

1984 fish kills were $10,376.84 and $443.26.

Petitioner appealed

the 1933 fines and costs as an abuse

of the Board’s ‘discretion.

In affirming the Board’s decision,

the court

found

that

the

violations did not require proof of knowledge or intent regarding

the discharges.

See

Russell

Perkin.son,

543

NLE.2d at

903,

citing Meadowlark

Farms,

Case

No.

21;

Hindman,

(Case

No.

28;

Freeman

Coal Mmmc,

Case

No.

22;

and Bath

Inc.,

10 Ill.Aoo.3d

507,

294 N.~.2o7i8 (~~tnD:st.

l9i3)

Case

No.

34.

Furthermore,

the court observed that although petitioner claimed

that

a trench

constructed by vandals caused

the 1983 violations,

the court

found

no evidence that

petitioner

tried

to prevent vandalism or

lacked the caoability

to control

the source of pollution.

The case before

us

is controlled

by

the

long

line of precedent

in Illinois which holds

that

the

owner

of

the

source

of

the

pollution

causes

or

allows

the

pollution

within

the

meaning

of

the statute and

is

responsible

for

that

pollution

unless

the

facts

establish

the

owner

either

lacked

the capability

to

control

the

source,

as

in

Phillips

Petroleum

or

had

undertaken

extensive

precautions

to

prevent

vandalism

or

other

intervening

causes,

as

in

Union Petroleum.

Russell

Perkinson,

543

N.E. 2d

at

903,

citing

Phillios

Petroleum

Co.

v.

Illinois

Environ-

mental

Protection

Acencv,

72

Ill.Apo.3d

217,

390

N.E.2d

620

(2d

Dist.

1979)

and

Union

Petroleum

Core.

v.

United

States,

651

F.2d

734,

(Ct.

Cl.,

1981).

Furthermore,

the

continuing

seepage

from

the

lagoon

also

supported

the Board’s order.

The court pointed out that

the

$10,000 penalty assessed

was

less

than

the Agency had requested

and referred

to

the violation.

as

a “major pollution event.”

3.

Permit Violation Cases

26

The Highlake Poultry

Inc.

Case

Penalties assessed

for violations

of various permitting

requirements have been

the basis of

a number

of reversals of

Board decisions.

In

the case of Hichlake Poultry Inc.

v.

Pollution Control Board,

25 Ill.Apo.3d

956,

323 N.E.2d 512

(2d

Dist.

1975),

the petitioner

began construction of

a sewage

ill

-

---

—25-

treatment plant without a permit.

The court reversed penalties

totalling $2,500 upon

a showing

that

the Agency contributed

to

delays

in securing

a permit, and the petitioner had been

cooperative and had achieved substantial compliance.

Showing

little tolerance for

this particular enforcement action the court

stated:

It

appears,

further,

that

in

this

case

a

relatively

small

business

was

being

put

to

considerable

trouble

and

expense,

was

trying

to

cooperate

with

the

various

governmental

bodies which seemed

to

be aligned against

it,

and

was

ultimately

penalized

for

being

too

early

rather

than

too

late

in making improve-

ments

to

its

sewage

treatment

system,

on

the

instigation

of

an

agency

responsible

in

some

measure

for the company’s oredicament.

~ih1ake

Poultry,

323 N.E.2d at

615.

(27

The Freeman Coal Mining Case

Other

cases

reinforce the Second District’s implication

in

H~~ake’Poultry, Case

No.

26,

that permit violations

in

the

face of good faith efforts and substantial compliance

expenditures present

a weak case

for

a penalty finding.

The case

of

Freeman Coal Minin~v.

Illinois Pollution Control Board,

29

Il1.App.3d

441,

330. 1~T~72d524

(5th

Dist.

1975)

demonstrates

that

the

appellate

courts

are

not

always

impressed

with

the

seriousness of permit violations, which may appear

to be more

form than substance when genuine efforts toward compliance have

been made.

The Freeman

Coal Mining case

involved violations

of both

permit

requirements and

regulatory standards

for air pollution

(density

of

smoke)

established

by

the

Board’s predecessor agency,

the Air Pollution Control

Board.

The court

remanded

the decision

to the Board on

the basis

that only two of

three alleged

violations could be sustained.

It directed

the Board

to

reevaluate

the $1,500 penalty

in light of

the

reduced number

of

violations and mitigating

factors.

‘The court

specifically noted

that with

respect

to

the petitioner’s failure

to secure permits

on

a timely basis,

“in determining the penalty for such

violation.,

the Board should

take

into consideration that the

installation of

the rnulticlones was cart

of

the acoroved ACERP’

(Air Contaminant Emission Reduction Program).

Freeman Coal

Mining,

380 N.E.2d at

529.

On remand

the penalty was

reduced

to

$850.

111-33

---

—~rz

-

281

The Hindman Case

In Hindman

v.

Environmental Protection Agency,

42

Ill.App.3d

776,

356 N.E.2d

669,

(5th Dist.

1976),

the court reduced

penalties

for open burning of

refuse at

a landfill and for permit

violations by

60,

on finding some mitigating circumstances and

good faith efforts

at compliance.

The court reduced the arguably

nominal penalties

from $250 and $500

to $100 and

$20’O.

In

dropping the open burning

fine

to $100,

the court stated that

“the

fine

of $250 could not prevent

the recurrence of

fires for

which he was not fully responsible.”

As

to the permit violation,

the court added

that

“a fine of

$200 would have accomplished what

the $500

fine sought

to accomplish and would have been more

closely related

to the

nature

of

the violation

involved.”

Hindman,

356 N.E.2d at

672.

This case illustrates

a reluctance

of the court

to imoose fines and the difficulty

faced by

the

Board

in setting amounts which might

encourage

compliance

in

similar circumstances.

(29

The Harris—Hub Company,

Inc.

Case

In another permit violation case,

the First District found

that

the. good faith,

inadvertent failure

to obtain

a permit

in

the absence of

a pQllution violation could not support

a

$500

penalty.

In Harris—Hub Company,

Inc.

v. Pollution Control Board,

50 Ill.App.3d

608, 365 N.E.2d 1071

(1st Dist.

1977),

the court

found that the company’s good faith was shown by changing

the

plant’s heating

system,

installing

an afterburner,

ceasing

to

burn refuse entirely,

and beginning

a plan

to convert forklift

trucks and tractors from gas

or diesel

to electric power.

The

comPany had a good faith belief

that

no permit was required and

was not recalcitrant.

It had also begun

the permit application

process before the complaint was filed,

and the record did not

reveal any economic advantage gained from

its

failure

to obtain

a

permit.

In

a forceful commentary on seeking

a penalty

for permit

violations,

the court

stated:

Here,

however,

‘it

is

apparent

that

the

resources

of

the

EPA

and

the

PCB

would

have

been

better

served

by obtaining

compliance

by

polluters

rather than by seeking the sanctions

of

a

civil

penalty

for

a

technical

noncom-

pliance

by Harris.

Harris—Hub,

365

N. E.2d

at

1073

(emphasis

added)

(30

The Darrel Slager,

d/b/a Rapid Liquid Waste Case

Darrel Slaaer,

d/b/a Rapid

Licuid Waste and Rubbish Removal

v.

Illinois

Pollution

Control

Board,

96

Ill.Aop.3d

332,

421

N.E.2d 929,

(1st Dist.

1981)

presents the kind

of case

in which

111—30

---

the courts

readily uphold a penalty

for

a permit violation.

Here

a $1,000 penalty was affirmed where petitioner

showed “conscious

disregard”

of an Agency warning and the liquid wastes posed

“an

especially

great hazard

to the environment because of their

tendency

to spread quickly and react with other wastes.”

Darrel

Slager,

421 N.E.2d at 934.

Giving

a measure of support

for

the

function of permits,

the court noted

that,

“one of

the reasons

for

the permit requir~men’tis

to enable the Agency

t’o supervise

economically safe disposal methods for such substances.”

Penalties,

therefore, may be most appropriate where safety

hazards and the Agency’s

need

to regulate those

risks

are at

issue.

See

also:

R.E. Joos Excavating Co.

v.

Environmental

Protection

Agenca,

58 Ill.Aop.3d

309’,

374 N.E.2d 486

(3d Dist.

1978)

Case

No.

31,

affirminc $1,500 oenaltv for ooeratinc

a

refuse disoosal

site without

a oermjt;

?ielet Bros. Tradinc,

Inc.

v. Pollution Control

Board,

110

Il1.App.3d 752,

442 N.E.2d 1373

(5th Dist.

1982)

Case

No.

32,

affirmin.g

$7,500

penalty

for

operating

a solid waste management

site without

a permit and

other violations

for on-site practices and open burning

on

a

80

acre

automobile

shredding

and

junk

site.

(33

The Wasteland,

Inc.

Case

In

a

1983 case also involving

a solid waste landfill

site,

a

$75,000 penalty was upheld

for numerous violations of the Act and

regulations where operations were

far beyond

the scope of

the

permit.

Wasteland,

Inc.

v.

Illinois Pollution Control

Board,

118

Ill.App.3d

1041,

456 N.E.2d 964

(3d Dist.

1983).

Among other

violations,

the firm accepted unpermitted

refuse, carried on

salvage operations,

failed

to properly cover

the waste,

caused

leachate

problems,

and

handled

almost

three

times

the

amount of

waste estimated

in

its permit application.

The court summarized

the facts

as

“a

case of.continuinc blatant disregard

for

requirements and procedures designed

to protect

the environment

while permitting useful operations.”

Wasteland,

Inc.,

456

N..E.2d

at 976.

The court

found

that

real

dartqers were oresent with

these extensive violations,

and this gave support

to

the

“severity

oi

the punishment.”

Id.

The court

noted

that

the civil pena1t~was not

in excess of

the maximum $10,000 per violation and S1,000

per day,

given

that

violations were committed

for over

a year.

The court also found

it was within

the Board’s discretion

to assess this oenalty

in

light of

the Board’s finding

that Wasteland

had saved Sl7,000

to

$25,000

by burying unpermitted wastes and saved $45,000 due

to

violations

occurring

at

a paper

recovery site.

This penalty was

found

by

the

court

to

a~o enrorcement

or

the

Act,

for

tnrough

penalties

upon

those who blatantly disregard applicable

rules and

regulation,

others who might consider cutting corners at

the

expense of

the environment,

are deterred.”

Id.

Here, where

the

court did not

find good faith efforts

at comoliance,

and the

violators benefited at the clear expense of

the environment,

the

court favored

a high penalty which might deter others

as well

as

ii 1-37

---

the violators.

(For an early case involving violations of

landfill

rules and regulations for spreading,

compaction, ‘cover,

salvage, and for underground burning,

see Bath,

Inc.

v. Pollution

Control Board,

10

Ill.App.3d 507,

294 N.E.2d 778

(4th Dist.

1973)

(Case No.

34.

The case did not involve permit violations,

but

did support

a $2,000 penalty

for illegal landfill

practices,

including burning, which the court held did not require proof of

knowledge,

intent,

or

sc’ienter.)

35

The Citizens Utility Company of

Illinois

Case

Another example of

the courts

general reluctance

to impose

penalties

for permit violations absent

a showing of actual

pollution or harm

is

found

in Citizens Utilities Company of

Illinois

v.

Illinois

Pollution

Control

Board,

127

Ill.Apo.3d

504,

468 N.E.2d

992

(3d

Dist.

1984).

In

this

case,

the N?DES permit

for operation of,

and discharges

from,

a sewage

treatment plant

was allegedly violated due

to inadequate operation and

maintenance practices.

The court reversed the $1,000 penalty,

finding

that no adverse environmental impact had occurred.

36

The

Standard

Scrap

Metal Company Case

In Standard Scrap Metal Company

v.

Pollution Control

Board,

142 Ill.App.3d

655,

491 N.E.2d 1251,

1259

(First District,

1986),

the court

found

that

the company’s operation of

a furnace and

incinerator

for nine years and the associated air pollution

“exhibited

a blatant disregard

for the

rules and procedures

designed

to

protect

the environment.”

Affirming

a $30,000

penalty,

the court held

that petitioner had acted

in bad faith

and

that the permit violation had been accompanied

by heavy smoke

emissions which “endangered

the public health and safety,”

“created a safety hazard” on

the nearby highway, and caused

nearby workers

to become

ill.

Standard Scrap Metal,

491 N.E.2d

at

1255.

The court

found support

for the amount of the penalty

in the

Board’s

consideration of Section

33(c)

factors as well as the

savings derived

from noncompliance and the company’s history of

profits

spent

for officers’

compensation

instead of pollution

controls.

The

court

cited

Wasteland,

Inc.,

Case

No.

33,

where

the violations

had also involved “dangers

to

the environment” and

the “petitioner was a private party who reaped an economic

benefit

from violations.”

Standard Scrap Metal,

391

N.E.2d at

1257,

1258.

(But

see also:

Archer Daniels Midland

(1983),

Case

No.

24a,

where

the Fourth District rejected the savings evidence

and assertion of financial

ability

to

pay.)

The court likewise

adopted

the Wasteland,

Inc.,

(Case No.

33,

reasoning

that

the

fine would

aid enforcement of

the Act

by deterring others.

The

court noted

with favor

that

the Board considered Standard

Scrap’s

financial condition as

a

mitigating

factor.

However,

the court

also allowed

the Board

to take

judicial notice of petitioner’s

ii 1-38

---

noncompliance with an earlier Board order,

requiring

the

installation of pollution control devices,

as

a matter

in

aggravation.

The court. noted that

it was inconsequential that

the petitioner was a different legal entity than

that

in the

earlier order,

finding

that petitioner was the successor—in—

interest to the first entity.

Standard Scrap Metal,

491 N.E.2d

at

1258.

Ascribing more significance to permit violations

than some

other court opinions have,

the First District stated:

Contrary

to

Standard

Scrap’s

contention,

violation

of

the Act’s

permit

requirements

is

not

a

mere

“oaoer”

or

“minor”

violation.

Rather,

the

violation

of

a

permit

requirement

goes

directly

to

the

heart

of

the

state’s

enforcement

program

and

ability

to

protect

against

environmental

camage.

The

permit

program

is

a method through which

the State of

Illinois

can control

emitters

of

contaminants

into the atmosphere,

as well

as emissions

that

may

result

in

the presence

of contaminants

in

the environment....

(The

Act provides

that

where

a

permit

requirement

imposes

an

arbitrary

or

unreasonable

hardship,

a

party

can seek and obtain

a variance from the permit

requirement.

Standard

Scrap

Metal,

491

N.E.2d

at

1256

(emphasis added).

The court went

‘on

to note

that despite Agency efforts, Standard

Scrap did not comply with peririit requirements and did not appeal

its permit denials or

seek

a variance.

The court seemed

to

be

addressing

these points

in

the context

of lack of good faith,

but

it should be noted that

failure to seek

a variance was held by

the Second District

in 1990

to be an

inappropriate element

in

a

consideration of Section

33(c)

factors.

See Modmn.e

Manufacturinq,

193 Ill.P.pp.3d

643,

549 N.E.2d

1379

(2d Dist.

1990).

(Case No.

381

below.

37

The Trilla Steel Drum Corporation Case

A 1989 appeal involving

a $10,000 penalty

for the

failure

to

secure an operating permit

for manufacturing operations which

resulted

in ~iO~1em:ssions endec

in

reversal ann remana on

the

issue

of

the

penalty.

Trilla

Steel

Drum

Corooration

v.

Pollution

Control Board,

180 Il1.App.3d

1010,

536 N.E.2d

788

(1st Dist.

1989).

The penalty was based on the lack

of

a permit and

not on

any finding of

violation of emission regulations or

of bad

faith.

Standing alone,

then,

the permit violation was

found

to

he an

inadequate basis

for what

the court

labele.d “the maximum

penalty of $10,000.”

Id.,

536 N.E.2d at

791

(emphasis added).

I 11—30

---

The court did not explain how

it calculated

that $10,000 would

be

the maximum penalty for a violation of

the Act for

a period

in

excess of

15 months.

In

the court’s

view,

the

record showed that

the violation lacked the requisite seriousness

to warrant

this

penalty.

This was found

to be especially

true since an expired

permit and a variance application pending at

the time of the

complaint put Trilla within “the regulatory awareness of the

Agency.”

“The Board has not shown

that Trilla’s omrssion has

harmed

in a serious manner either

the information gathering or

oversight

roles of

the Agency.”

Trilla Steel Drum,

536 N.E.2d at

790.

Discouraging

the use of

a penalty

as

a general deterrent

to

violations,

the court advised that

“the

Board should not

attempt

to make an example of Trilla since

such

a practice has

been expressly disapproved

of by this court...”

Id.,

at 791

citing Southern Illinois Asphalt

Case

No.

4

and City of Chicago

v.

Illinois Pollution Control Board,

57

Ill.App.3d

517,

373

N.E.2d

512

(1st Dist.

1978)

Case

No.

39.

This case

illustrates

how, absent proof of actual or threatened

harm,

most

large

penalties

for permit violations have not been affirmed by

the

courts.

(38

The Modine Manufacturing Company Case

Modine Manufacturing Company

v.

Pollution Control

Board,

193

Ill.App.3d

643,

549 N.E.2d 1379

(2d Dist.

1990), was an appeal of

a $10,000 civil penalty

imposed by the Board on remand after

an

earlier appeal.

The $10,000 penalty was imposed

for operating

without a permit

in violation of Section 9(b)

of

the Act.

The

1990 court ocinion noted

that beginning

in late

1981,

Modine’s emission levels were found by

the Agency to exceed

regulatory

limits.

Despite efforts made by Modine,

emissions

remained excessive and the renewal

of

‘its operating permit was

denied

in

1983.

Contact with the Agency and corrective efforts

continued,

with Modine also spending $22,000

in

1984 and $310,000

in early

1985

to achieve compliance.

At

a June

1985 pre—

enforcement meeting,

the parties agreed that Modine

would

replace

its pollution control process with one based on

technology

it

purchased at

the $310,000 cost above,

and that

the Agency would

refrain from bringing an enforcement action

for emission.

violations.

The Agency brought an enforcement action

in

February,

1986 and the Board

imposed

a $10,000

fine

for operating

without

a permit since October,

1983 and for violations

of

particulate emission limitations.

In

the original appeal,

the

court

found

that

the Agency could

not pursue

the emissions

violation and remanded to

the Board on the sole issue of

the

appropriate penalty

for the permit violation.

Id.,

549 N.E.2d at

1381,

citing Modine Manufacturing Company

v.

Pollution Control

Board,

176 Ill.App.3d

1172,

549 N.E.2d

359

(1988).

On

remand,

the Board

imposed

a SlO,000 penalty

for the permit violation

alone.

Modine appealed

the Board’s decision and the court

reduced

the fine

to $1,000.

111—40

---

The Second District rejected appellant’s argument

that

a

penalty could

not aid enforcement since

the violation had ended

before the complaint was filed.

“(We

decline

to hold

categorically that penalties may not ~e imposed

for wholly past

violations.”

Modine Manufacturing,

549 N.E.2d at

1382,

citing

City of East Moline

v.

Pol1uti~onControl

Board,

136 Ill.App.3d

687,

693,

483 N.E.2d 642

(3d Dist.

1985)

(Case No.

41.

However,

when the court reviewed the

Board’s decision,

the cdurt

found

that although some penalty could be sustained,

the amount was

influenced

by

not only Section

33(c)

factors,

but Modine’s good

faith,

candor,

cooperation,

sincere efforts and exper.diture

of

substantial amounts of money

to remedy

the problem.

Modine

Manufacturing,

549 N.E.2d

at

1384.

The court

found

that $1,000,

and not $10,000, was

in keeping with the Supreme Court’s ruling

in Southern Illinois Asphalt,

Case

No.

4,

that all

the facts

and

circumstances

bearing

on

the reasonableness of the complained

of

conduct

and

the seriousness

of

the infraction must

be

considered

in

a penalty determination.

Citing Trilla Steel

Drum,,

C~se

No. 3~,

the court

found that Modine had become a part

of

the

regulatory

program

and,

therefore,

the

Board’s

estimate

of

the

seriousness

of

the

failure

to secure

a permit was

of

diminished importance.

Interestingly,

the court also found

that

Modine’s failure

to seek

a variance was not relevant

to the

Board’s ev~luationof

technical practicality

or economic

feasibility.

This was a

“procedural consideration”

only, which

the court

found excusable.

Modine Manufacturing,

549 N.E.2d at

1383.

Again,

a permit violation without attendant harm or bad

faith did not support

a

lar’ge penalty, much

less

the statutory

fine of up to $10,000

per violation, which

the court

here

referred

to as

the “maximum penalty of $10,000,” while noting

that

the Board had argued that

the statute also provides

for

a

$1,000 per day additional penalty.

Id.,

549 N.E.2d at

138$

(emphasis added).

As

in Trilla Steel

Drum,

Case

No.

37,

the

court did not explain how

it calculated

that $10,000 would

be the

maximum

penalty

for

several

years

of non—compliance with the

permit

requirements.

4.

Local Government

Cases

Penalty

cases involving local governments reflect

a certain

deference

to

the needs and workings

of those governir.g bodies.

The courts seem

to recognize

the nature of

the economic impact

of

a civil oenaltv on

the community.

Comoliance alternatives are

pernaps more l:m:tea

for

a public coc~consicering

tne

range or

public services which oust

be delivered consistently

to

the

public.

Among other services,

water,

sewer, and garbage

collection are imoortant health services orovided by

local

governments.

Their

costs are borne

by

the oublic and the ability

to finance

them involves

a variety of

issues,

such as

the health

of

the local

economy,

the availability

of bond

financing and the

oossibilities of state or

federal

aid.

Pollution control

measures

ann

any

penaities

tor

v~o1ations

a~so

ratse

tnese

questions.

Loo~z1ng to these

facts,

the courts seem

to allow

less

latitude

to

the

Board

where

th~

Board

has

attempted

to

impose

111-41

---

penalties

for violations of environmental laws.

The appellate

case law therefore shows

a pattern of frequently

reduced or

vacated penalties.

39

The City of Chicago Case

In 1978,

the First District

reversed a $10,000 penalty

for

operation of

a municipal

incinerator without

a permit

in

violation of Section 9(b)

of the Act, and for air pollution and

particulate emissions which violated Section 9(c).

The court

found that

“first,

petitioner demonstrated

a sincere desire

to

eliminate,

or

at

least

reduce,

stack emissions....

Secondly,

the

Board’s Order failed

to consider economic and technological

factors.”

City of Chicago

v.

Illinois Pollution Control

Board,

57

Ill.App.3d

517,

373 N.E.2d

512

(1st

Dist.

1978).

The court

was favorably

impressed by petitioner’s studies and efforts

to

minimize air pollution with respect

to all its facilities, and

not just

the one involved here.

Furthermore,

to modify

the

incinerator

in question would require

a two

year

shutdown

or

inordinate expense, given that

the City had ‘decided to abandon

it

and develop a new plant.

The court

found

that

the Board had

assessed

a large penalty despite mitigating circumstances and the

failure of

the Agency

to request

a penalty.

“Consequently, we

believe

the Board’s primary purpose was

to make an example out of

petitioner.

Such a purpose

is

improper and in this case violates

the requirement

that the penalty bear some relationship

to the

seriousness of

the infraction.”

City of Chicago,

373 N.E.2d at

516.

One more caveat was delivered

by

the court.

That was a

caution

to

the Board

in cases involving local government.

“Many

of

the considerations facing petitioner directly involved the

public sector.

The public would be

the ultimate loser

if

petitioner were

to shutdown operations.”

City of Chicago, 373

N.E.2d at

516

(emphasis added).

(40

The City of Moline Case

In The City of Moline

v.

Pollution Control

Board, 133

Ill.App.3d 431,

478 N.E.2d 906

(3d Dist.

1985),

the court vacated

a $90,000

fine

imposed

by the Board

for water pollution

violations associated with

the city’s sewage treatment plant.

Tne court agreed that

tne city had v~o~atedthe Act,

recunations,

and

its NPDES permit.

However,

the court

found

that

the serious

pollution problems were substantially cured before

the complaint

was

filed.

The court concluded,

therefore,

that

the penalty

could not aid enforcement

of the Act.

It reversed the penalty,

highlighting

two facts:

111-42

---

Two

significant

facts

dictate

against

the

imposition

,of

any

mandatory

penalty

by

the

Board.

First,

the

ends

sought

did

‘not

necessarily

require

the

bringing

of

the

instant complaint.

In working with Moline

to

solve

its

problems,

the

LEPA

chose

an

effective

and

appropriate

course

of

action.

Instead

of

jumping

the gun

in September

r980

and

bringing

an

action

against

an

obvious

polluter,

the

IEPA

took

the

prudent

course

of

seeking

alternative

means

to

assure

com-

pliance.

The

main.taining

of

this

course

produced,

if’ not with any great

immediacy,

the

initially

desired

result.

This

was

parti-

cularly

aoorooriate

in

that

the

IEPA

was

dealinq

with

neither

a

wilful

and

callous

oillaqer

of

the

environment

nor

a

orivate

party

for

whom

delayed

compliance

would

translate

into

oersonal

gain.

Second,

one

must

consider

the

identity

of

the

respon-

dent.

The burden

of

the

fine

would

be

borne

by

the

taxeavers

of

Moline.

While

the

Board

points out

that

the under—assessment

of

these

taxpayers

was

a

contributing

reason

for

Moline’s

noncompliance,

it

would

serve

no

useful purpose

to punish

them

further

for

the

violations

charged.

It

should

also

be

noted

that

an

increase

by

165

in sewer

assessments

was

necessary

to

finance

the

measures

instituted

by Moline.

City

of

Moline,

478

N..E.2d

at

908,

909

(emphasis added).

The court seemed

to be distinguishing municipalities which

make some efforts at compliance

from private parties who might

personally profit from noncompliance.

Economic gain from

noncompliance might

be relevant

in assessing

a penalty,

but

the

court implied

that this factor

is not

as meaningful

for a

munici~ality,

since

the

benefit

is

not

personal

in.

nature.

The

court

reached this conclusion despite

the Board’s

finding

that

Moline’s

delayed

compliance

resulted

in

savings

in

excess

of

$1.3

million.

(See

IE?A

v.

City of Moline,

60 PCB 01,

17,

PCB 82—154,

Sept.

6,

1984.)

‘The court also observed

that the burden of

a

penalty would be borne by

the taxoayers who ultimately pay for

the

municipality’s

environmental

programs.

The

court

seemed

sympathetic

to Moline’s situation,

and,

therefore,

reversed

the

$90,000

fine completely,

even though the Board had calculated

the

maximum penalty at $43,697,000.

11-

~‘.

3

---

_,

~1

(41) The City of East Moline Case

The

case

of

City

of

East

Moline

v.

Pollution

Control

Board,

136 Ill.App.3d

687,

483 N.E.2d 642

(3d Dist.

1985)

involved

violations of

permits and of various

regulations governing

the

city’s sanitary landfill,

such as clay cover

requirements,

control of leachate and vectors

(animals/insects), and dumping

practices.

The court

reduced the penalty from $30,dOO

to

$10,000,

finding that many of

the violations

had ended before

enforcement proceedings began

(including ~some of which were cured

by the issuance of permits).

It also held

that the Agency’s

conduct

from the early 1970’s until

1980

“represent(ed

an

accommodation

to and an acceptance of

an

inappropriate level of

compliance which can not now be characterized

as bad faith.”

City of East Moline,

483 N.E.2d at

648.

The court was willing

to

impose

a penalty

for violations which were related

to “conditions

existing

at the time

the enforcement proceedings were

instituted,” which

...“might well promote compliance

with

the

violated sections of the regulations.”

Id.

at

648.

A penalty

might

then help bring

about

a municioaliE~s compliance

if

enforcement

relates

to violations

of

a current

nature.

42

The City of Freeport Case

In a 1989 decision,

the Second District showed much

less

deference where

a City’.s sanitary sewer backed up and overflowed

into homeowners’

yards and flooded basements over

a 20-year

period.

In City of Freeport

v. Pollution Control Board,

135

Ill.Dec.

644,

544 N.E.2d

1

(2d Dist.

1989)

a $10,000 penalty was

affirmed based on the court’s concurrence with

the Board’s

evaluation of Section

33(c)

factors.

The court

noted

that

the

long—standing violations

imposed “an extreme inconvenience on

homeowners as well as health risks.”

City of

Freeport’,

544

N.E.2d at

4.

The Board

found

that the solutions were neither

technically impracticable or

economically unreasonable.

Firmly

supporting

the Board’s decision,

the court also noted

that

the

Board had authority

to impose

a fine of $1,000

per day,

but did

not.

C.

Penalty Factors Derived From Illinois Case Law

The courts have reviewed

the Board’s penalty decisions

by

balancing statutory and other

factors relevant to

the reason-

ableness of

the pollution offense.

The statutory guidelines are

delineated

in Section

33(c)(l)

through

(6).

The other consider-

ations are discussed

in the cases under

the Section 33(c)

directive

to consider all the

facts and circumstances.

Some

,of

these factors addressed

in

the body of case

law are good faith,

any deterrent effect

of

a penalty, economic benefits of non-

compliance,

ability

to pay,

and cessation and duration

of

a

violation.

Court-enunciated principles

on

these factors are

discussed

below.

I,

I.

i

j’+—~

---

—

~

1.

Statutory Factors

The

six

statutory

criteria

of

Section

33(c)

to

be

considered

in

enforcement

cases provide only the starting point

in a penalty

determination.

The statute specifically states that

“the Board

shall

take into consideration all the

facts and circumstances

bearing upon the reasonableness of

the emissions,

discharges,

or

deposits involved including,

but not limited to”

th4 six

criteria.

See

also

Modine

Manufacturing,

(Case No.

38,

and

Southern Illinois Asphalt,

(Case No.

4.

Those enumerated

factors may

be characterized as

(1)

harm,

(2)

social and

economics value,

(3)

acorooriateness

of

location of the oollution

source,

(4)

technic-al practicability and economic reasonableness

of pollution control,

(5)

economic benefits

of

noncompliance,

an.d

(6)

any

subsequent

compliance.

The

courts

have

not

weighted

these factors

in terms

of relative importance.

However,

in

keeping with the Supreme Court’s emphasis

in Southern

Illinois

Asohalt,

(Case

No.

4,

on the seriousness of

the offense or

infr~Eion, physical ailments or serious health risks have

generally warranted imoosing penalties.

See Marblehead

Lime,

Case

No.

18

Darrel Slacer,

(Case No.

30,

Wasteland,

Inc.,

Case

No.

33.

On the other

hand,

permit violations,

absent bad

faith or

harm,

generally have not been sufficient

to support

a

penalty.

See Southern Illinois Asphalt,

(Case No.

4,

Harris-

Hub,

Case

No.

29.

Another

key fact,

the availability of

control technology that

is not prohibitively costly,

has

generally justified

a penalty.

See Aluminum Coil Anodiz~,

Case

No.

11;

Lloyd

A.

Fry Roofing,

(Case No. .121;

Standard

Scrap Metal,

Case

No.

36).

However,

no formulae exist,

and

essentiaIT~, the Board must make

a case—by—case determination.

2.

Good Faith

The courts have found evidence of

the presence or absence of

good faith

to be

a very significant determinant

of

a penalty.

Good faith has not been found

to be

a matter of

intent, since

intent

or guilty knowledge

is not a necessary element

to finding

a violation.

Rather,

good. faith has been inferred from behavior

which reflects diligence and which

is reasonably directed

towards

the goal of achieving compliance.

The acceptable efforts have

included hiring engineers

to find

a cure for pollution,

attempting

to secure permits, installing pollution control

equipment

at considerable expense, and abandoning offensive

practices all together.

See,

e.g., Citvof

Chicaao,

Case

No.

39), Harris—Hub,

Case

No.

291,

Archer

Daniels

Midland,

Case

No.

24), Modine Manufacturinc,

(Case No.

38.

The quantum of goon fa~tneffort

to achieve success may nave

fallen short

of successful pollution abatement,

and yet the court

has found

that

no penalty was justified,

even though some

violation had been found.

Bresler

Ice Cream,

(Case

No.

13,

Chicago Magnesium Castinc,

Case

No.

14),

CPC

nternational,

(Case

No.

15,

Arnold

N.

May,

16.

Bad faith

or

clatan.t

disregard of en~ironmental laws, however, stroncly supports

a

111-$5

---

penalty.

See Wasteland,

Inc.,

(Case No.

33,

Metal,

Case

No.

3.

a.

Aiding Enforcement

by Deterring Others

Some conflict exists over whether deterring others from

violating environmental laws

is an appropriate element

in

assessing

civil penalt-ies.

In the 1976 case, Aluminum Coil

Anodizing,

Case

No.

11,

the court

explained

that

a $1,500

penalty would aid enforcement

“by working

to secure voluntary

compliance with the Act

in other cases,

especially

by ACA at its

new facility.

Id.,

315 N.E.2d at 619

(emphasis added).

Here,

the company had made no good faith efforts at curing an odor

problem for over one year after

the complaint was filed.

In the

absence of further explanation from the court,

the penalty might

be considered as generally deterring similar bad faith

in others,

and thereby, indirectly

fostering compliance.

Similarly,

in 1983 the court

in Wasteland,

Inc.,

Case

No.

33,

held

that

the $75,000 penalty

for blatant disregard of

landfill rules and regulations would aid enforcement since

“others, who might consider cutting corners at

the expense of the

environment, are deterred.”

Id.,

456 N.E.2d at 976.

This

position was specifically adopted

in 1986 by the First District

in Standard Scrap,

Case

No.

36.

That court

found that

a

$30,000 penalty

for the bad faith violation of air pollution laws

would aid enforcement

of the Act by deterring others.

However,

in 1989 the First District admonished the Board not

“to make an example” of

a company against whom the Board assessed

a $10,000 penalty

for failure

to secure an operating permit.

Trilla Steel

Drum,

536 N.E.2d at 791.

In this case neither harm

in the form of excessive emissions

nor bad faith was proved.

The

court relied on the Supreme Court decision

in Southern Illinois

Asphalt,

(Case No.

4,

and

its

own

decision

in City of Chicago,

Case

No.

39,

both of which involved permit violations.

In both

of these early cases,

the courts found

that

in light

of all the

facts and circumstances,

the violations were

not sufficiently

serious

to justify the penalties, and the primary purpose of

a

penalty

is

to aid enforcement of the Act.

In

the City

of

~

(Case No.

39,

the First District reversed a $10,000

penalty since

it believed

that despite

the City’s substantial

efforts,

the Board’s primary purpose

“was

to make an example out

of petitioner.

Such

a purpose

is improper...”

Id.,

373 N.E.2d

at

516.

Thus, while

the Board has some appellate

court

support

for assessing penalties which might deter others, some Illinois

decisions suggest

that

this

cannot be

the Board’s primary purpose

in assessing penalties, although

higher penalties may be

warranted

for relatively more serious violations or

those

evidencing

bad faith.

111—00

---

b.

Economic Benefit From Non—Compliance

Independent. of the 1987 statutory amendment requiring

consideration of economic benefits,

some appellate courts have

acknowledged that the Board may consider whether

a violator has

gained an economic benefit or cost savings from delayed

compliance as part of

a penalty determination.

In Wasteland,

Inc.,

Case

No.

33,

total cost savings

of $62,000

to

$70,000

were considered

in affirming

a $75,000 penalty

for blatant

violations

of landfill requirements.

Similarly,

in Standard

Scrap Metal,

(Case No.

361,

the court noted

that

“in Wasteland,

as

in this case,

the petitioner was a private party who reaped an

economic benefit-from violations.”

Id.,

491 N.E.2d at

1258.

In

affirming

a $30,000 penalty

for

nine years of

blatant violations,

the court

supported

the Board’s reliance on an Agency estimate of

cost savings of approximately $104,500.

The court

found

that the

evidence showed

“a substantial economic savings by Standard Scrap

at the expense of the public health and welfare,” which was

properly considered by

the Board.

Id.,

491 N.E.2d at

1259.

The cost savings was found

to be estimated conservatively

and was based on the following evidence:

James Levis,

economist employed by the Agency,

testified

that

Standard

Scrap

saved

approx-

imately

$104,500

by

failing

to

install

the

afterburner

required

by

the

1974 order.

This

figure

was

arrived

at

based

on

a

computer

progtam adopted

by

the United States Environ-

mental

Protection

Agency

(USEPA).

Levis

testified

that

the

computer

program

utilizes

the following

data:

the estimated cost of the

afterburner

at

the

time

that

it was

initially

to

be

installed;

the

prevailing

rate

of

inflation

for

the

relevant

time

period;

the

discount

rate,

based

on

Standard

Scrap’s

average

return

on

stockholders’

equity;

the

interest

rate

on

Standard

Scrap’s

long

term

debt;

Standard

Scrap’s

marginal

income

tax

rate;

the investment

tax credit

rate;

Standard

Scrap’s

capital

structure;

and

the

depreciation

life

of

the

afterburner

equipment.

Id.,

491 N.E.2d at 1255

These

two cases relied on

cost savings by

a violator

who was

found to have acted

in bad faith.

Other

cases suggest

that

the

cost savings may carry less weight when good faith efforts have

been shown.

In Harris-Hub,

(Case

No.

29,

for

example,

the court

reversed

a

$500 penalty based on good faith and inadvertence

in

failing

to obtain

a permit.

Further

support

for vacating

the

penalty was the absence of apparent benefit

from non-

compliance.

“Tihe

record

fails

to disclose that

Harris was

111—47

---

gaining any economic

advantage over

its business competitors

considering

the expense incurred

in controlling possible

pollution

in its manufacturing procedures.”

Id.,

365 N.E.2d at

1075.

Good faith was of primary importance, but economic benefit

was nonetheless relevant.

In Archer Daniels Midland,

Case

No.

24a,

the court

focused

more particularly on the relative importance

o’f good faith and