ILLINOIS POLLUTION CONTROL BOARD

August 30,

1990

PEOPLE OF THE STATE

OF ILLINOIS,

Complainant,

v.

)

 PCB 90—84

(Enforcement)

WE-TOAST BREAD

)

COMPANY,

 INC.,

Respondent.

PAMELA

CIARROCCHI, ASSISTANT ATTORNEY GENERAL, APPEARED

ON

BEHALF

COMPLAINANT.

ROBERT

 MELTZER, ROBERT MELTZER & ASSOCIATES, APPEARED

ON BEHALF OF

RESPONDENT.

ORDER OF THE BOARD

 (by J. Theodore Meyer):

This matter is before the Board on a complaint filed April 26,

1990 on behalf of the People of the State of Illinois (People),

by

and through its attorney, Neil F. Hartigan, Attorney General of the

State of Illinois, against We-Toast Bread Company (We-Toast).

The

We—Toast facility at issue

 in this case

 is located

 at 1038 South

Kolmar,

 Chicago, Illinois.

 The complaint alleges that We-Toast

has

violated

Section

 9(b)

 of the Environmental

 Protection Act

 (Act),

Ill.Rev.Stat.

1987,

ch.

ill

1/2,

 par.

 1009(b),

and

35

 Ill.

 Adm.

Code

201.144.

Those

sections

prohibit

any

 person from operating

existing

emission

sources

and

air

pollution

control

equipment

without

operating

permit

from

the

Illinois

Environmental

Protection

Agency

(Agency).

Hearing

 on this matter was held June

13,

 1990,

in

Chicago,

Illinois.

At

 hearing,

 the parties

 submitted

 a stipulation

and

settlement

 agreement.

 According

to

the

 stipulation,

 We-Toast

processes bakery waste for animal and poultry food at

 its Kolmar

Avenue facility.

 The facility operates 8 air emission sources and

3 pieces

 of air pollution

 control equipment,

 and operated those

sources

 and equipment without

 permits

 from at

 least

1972

 until

April

6,

 1990,

 when the Agency issued an operating

 permit.

We-

Toast admits to past violations of Section 9(b)

 of the Act and 35

Ill.

 Adin.

 Code 201.144, and agrees to pay a penalty of $3,000.

After reviewing the record

 in this case,

 the Board requires

additional

 information.

 The record shows that We—Toast operated

11 pieces of unpermitted equipment

 for a period of

18

 years, and

is now willing to pay a $3,000 penalty.

 Pursuant to Section 42(a)

14—7’)3

2

of the Act,

as

 it existed

 at the time

of

 these violations,

any

person who violates the Act or Board regulations

 is liable

 for a

civil penalty of up to $10,000 per violation and up to $1,000 per

day for continuing violations.1

 A mathematical calculation shows

that

 We—Toast

is

 liable

for

up

to

 more

72

 million

 dollars

in

penalties,

 excluding

 interest,

 yet the stipulation

 provides

for

only

 $3,000--roughly

 $167

 per year

for

 operating

11

 pieces

of

unpermitted equipment.

 The Board has both the power and the duty

to exercise independent discretion over settlement agreements, and

is

 obligated

to

 ensure

 that

all

 penalties

 will

 aid,

in

the

enforcement of the Act.

 Illinois Environmental Protection Agency

V.

 Archer Daniels Midland,

 68 PCB 501,

503

 (PCB 80—151, March 27,

1986), modified, Archer Daniels Midland v. Pollution Control Board,

149 Ill.App.3d

 301,

 500 N.E.2d

 580,

 102 I11.Dec.

687

 (4th

 Dist.

1986).

 Although the penalty seems

 low in this

 case,

 the Board

notes

 that

the

 record

 does

not

 contain

any

 information

on

the

existence

of

 any mitigating

 circumstances,

 including We—Toast’s

ability to pay.

 See Illinois Environmental Protection Agency v.

Arnold’s

 Sewer

and

 Septic

 Service,

63

PCB

43,

46

 (PCB

 83-23,

February

20,

 1985).

 Therefore,

 the Board directs the parties

to

file additional explanation

 in support

 of the stipulation.

 This

explanation shall be received by the Board on or before October 15,

1990.

Finally, the Board notes that although the complaint

 in this

case asks the Board to order We—Toast to pay all costs,

 including

reasonable

 attorneys’,

 expert

 witness’

and

 consultants’

 fees,

expended by the People in pursuit of this action, the stipulation

is completely silent on this issue.

 The People shall address this

 omission in its filing, due October

15,

 1990.

IT

 IS SO ORDERED.

J.

D.

 Dumelle

and

J.

 Marlin concurred;

 Anderson

and

R.

Flenial dissented.

I,

 Dorothy

M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board,

 hereby

cer

fy

 that

the

 above

 Order

 was adopted

on

the

‘.3O~~

day of

 ç~~,’—

 1990,

 by a vote of

 5~~l

‘~-~i~

V~A~

Dorothy M. Gu)~n, Clerk

Illinois Poll~tionControl Board

1

The

 Board notes that the penalties were raised to $50,000

per violation and $10,000 per day,

 effective July

1,

 1990.

 1~—7~)4