dissenting:
I would uphold the Board’s authority to impose variable monetary penalties, as in Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 292 N.E.2d 540.
Petitioners do not urge as a separate ground for reversal that the Board’s findings were against the manifest weight of the evidence or that the Board acted arbitrarily, capriciously, or otherwise abused its discretion in dealing with them.1 The sole issue raised is whether section 33(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(b)) violates the separation-of-powers provision of the Illinois constitution.
The Illinois Supreme Court has never specifically held that the ability of an administrative agency to assess a variable monetary penalty necessarily violates the separation of powers restriction. The court has held that the assessment of a wide variety of sanctions by an administrative agency is permissible. (People ex rel. Rice v. Wilson Oil Co. (1936), 364 Ill. 406 (fixing of bond penalty); Department of Finance v. Cohen (1938), 369 Ill. 510 (deficiency assessment); Department of Finance v. Gandolfi (1940), 375 Ill. 237 (tax penalty); Vissering Mercantile Co. v. Annunzio (1953), 1 Ill.2d 108 (adverse publicity); Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89 (denial of license); Cermak Club, Inc. v. Illinois Liquor Com. (1963), 30 Ill.2d 90 (revocation of license).) The cases cited by petitioners, Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. People ex rel. Barter (1904), 212 Ill. 638, and Reid v. Smith (1940), 375 Ill. 147, are distinguishable, as was pointed out by the Third District. Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 715-716, 292 N.E.2d 540, 542-543.
The majority opinion relies on the fact that the fine is discretionary. While this may be a factor to consider, as indicated by the language of the cases referred to by the majority, it should not be conclusive. Administrators often exercise judgment and discretion, and investigate, deliberate and decide without exercising judicial power within the meaning of the constitutional restriction dealing with separation of powers. (Toplis & Harding, Inc. v. Murphy (1943), 384 Ill. 463, 473.) The danger that administrative discretion may be exercised arbitrarily that exists in fixing the amount of a monetary penalty exists also in apportioning costs of construction of commerce facilities (Chicago Junction Ry. Co. v. Illinois Commerce Com. (1952), 412 Ill. 579) or in denying a license to a currency exchange. Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89.
Similarly, it is not altogether realistic to draw the line of discretion short of variable monetary penalties while allowing administrative agencies the freedom to impose non-monetary sanctions or fixed monetary penalties. (See Gellhorn, 1970 Wash. U.L.Q. 265, 271-279; Jaffe, Judicial Control of Administrative Agencies (1965), pp. 112-114; 1 K. Davis, Administrative Law, sec. 2.13 (1958), pp. 134-138.) It may be wiser from a practical viewpoint to enable an administrative agency to fine according to the seriousness of the infraction and other relevant criteria rather than be limited to an all-or-nothing sanction such as revocation of a license. (Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 718, 292 N.E.2d 540, 545.) On the other hand, the imposition of a non-monetary penalty such as suspension of a license or permit for a period of time to be determined by tire administrative agency 2 amounts in effect to a less precise form of a flexible monetary fine. Even with a fixed monetary penalty, administrative discretion as to how many violations to prosecute, which frequently cumulate by days3 as well as the number of regulations infracted, will determine the ultimate amount of the penalty the violator will have to pay.4
The majority opinion takes the position that “actual judicial authority” should not be granted to administrative agencies under the guise of being labelled “quasi-judicial” or “ministerial.” However, classification of official duties under the three heads of legislative, executive, and judicial cannot be very exact, and there are many officials whose duties cannot properly, or at least exclusively, be arranged under either of these heads. (People v. Joyce (1910), 246 Ill. 124, 135.) Numerous instances can be cited where functions apparently judicial in nature when performed by an administrative body or official do not violate the separation of powers provision of the constitution. See George v. People (1897), 167 Ill. 447, 458-464, and instances discussed therein. See also, e.g., Department of Public Works & Buildings v. Lanter (1953), 413 Ill. 581 (eminent domain powers); Chicago Junction Ry. Co. v. Illinois Commerce Com. (1952) , 412 Ill. 579 (apportionment of costs); Toplis & Harding, Inc. v. Murphy (1943), 384 Ill. 463 (determination of employment relation); Grand Trunk Western Ry. v. Industrial Com. (1920), 291 Ill. 167 (entitlement to workmen’s compensation).
Admittedly, possibilities of abuse, discrimination, and capriciousness exist when a penalizer has a choice about the severity of the penalty he will impose. Both courts and legislatures have been reluctant to authorize administrative agencies to impose variable monetary penalties. However, the dangers involved in and the necessity of conferring flexible penalty powers are considerations at first instance and primarily to be carefully weighed by the legislature before choosing to confer such authority. Courts are limited to determining whether the authority conferred is incidental to administering the law (Cermak Club, Inc. v. Illinois Liquor Com. (1963), 30 Ill.2d 90, 93; Gadlin v. Auditor of Public Accounts (1953) , 414 Ill. 89, 97), and whether the administrative agency is invested with arbitrary powers. Department of Finance v. Cohen (1938), 369 Ill. 510, 514-515, 516-517; Rough v. Hoehler (1952), 413 Ill. 409, 420-421.
Thus the legislature may confer that measure of authority which is practically and reasonably necessary to accomplish the legislative purpose. (Department of Public Works & Buildings v. Lanter (1953), 413 Ill. 581, 587, 589-590; Reif v. Barrett (1934), 355 Ill. 104, 132-133; Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 718, 292 N.E.2d 540, 543-544.) A broader delegation of discretionary power is justified where it is needed to deal with significant problems involving public health and safety (Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711; 292 N.E.2d 540, 543-544; 1 Cooper, State Administrative Law (1965), pp. 36-37, 63, 91.), particularly where there is a need for expertise to deal with a complex area of regulation (Department of Public Works v. Lanter (1953), 413 Ill. 581, 586-588, 589-590), or where there is a need for expeditious procedures. Crowell v. Benson (1932), 285 U.S. 22, 54, 52 S.Ct. 285, 293-294.
Whether sufficient safeguards and limitations accompany a questioned delegation of authority requires an examination of the entire context in which the conferred authority is exercised. (See Rough v. Hoehler (1952), 413 Ill. 409, 420-421; Toplis & Harding, Inc. v. Murphy (1943), 384 Ill. 463, 470-473.) Since the true meaning of the doctrine of separation of powers is that the whole power shall not be lodged in the same hands (Hills v. Relyea (1966), 34 Ill.2d 552, 557), the most essential check on arbitrary administrative action is meaningful judicial review in which courts make the final determination of lawfulness of agency action. Crowell v. Benson, 285 U.S. 22, 54, 52 S.Ct. 285, 293-294 (1932); 1 Cooper, State Administrative Law (1965), p. 17; 1 K. Davis, Administrative Law (1958), sec. 2.10, p. 115; Utton, 7 Nat. Res. J. 599, 603, 626 (April 1967).
I would conclude that the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1001 et seq.) does not confer judicial powers within the meaning of the separation of powers prohibition of the constitution.
The Environmental Protection Act was enacted to provide a consistent state-wide response to serious dangers posed by damage to our environment and to assure that adverse effects upon the environment are borne by those who cause them. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1002, 1008, 1011, 1014, 1020, 1023; O’Connor v. City of Rockford (1972), 52 Ill.2d 360, 366.) It cannot be doubted that protection of the environment is both a pervading and urgent problem. Article XI of the 1970 Illinois constitution mandates the legislature to take effective action to deal with threats to the environment. The Record of Proceedings of the Sixth Illinois Constitutional Convention discloses that the framers of the present state constitution in drafting and adopting article XI considered the threat to the environment had reached crisis proportions and wanted the General Assembly to enact effective enforcement procdures in legislation designed to protect the environment from pollution. Verbatim Transcripts, Vol. IV, pp. 2990-2991, 2993, 3000, 3011-3012, 3490-3491; Committee Proposals, Vol. VI, pp. 693-720.
The majority opinion points to other provisions of chapter 111% of the Revised Statutes that deal with public health to demonstrate that administrative assessment of penalties is not necessary. However, not only is there no constitutional mandate for these other laws, but the absence of a flexible penalty power in those instances perhaps serves to underscore the necessity for conferring such power the legislature must have felt in enacting the Environmental Protection Act. Moreover, the other laws of chapter 111% generally deal with narrow area (e.g., par. 73.1 et seq. (funeral directors and embalmers); par. 128 et seq. (stray animals); par. 185.1 et seq. (migrant labor camps)) and uncomplicated rules of conduct (e.g., licensing, registration, examination, maintenance of premises).
Without the flexible penalty power, effective administration of the Environmental Protection Act might become difficult if not impossible. (Ford v. Environmental Protection Agency (3d Dist. 1973), 7 Ill.App.3d, 292 N.E.2d 540, 545.) Courts are cumbersome, inefficient, and expensive by comparison to streamlined administrative procedures designed to deal specifically and flexibility with one problem-area. Fines imposed by courts would inevitably be inconsistent, whereas the Pollution Control Board with its expertise and centralized jurisdiction could more intelligently and effectively achieve the legislative purpose. See O’Connor v. City of Rockford (1972), 52 Ill.2d 360, 366-368.
Limits are placed on the amount of the penalty assessable. (Ill. Rev. Stat. 1971, ch. 111½, par. 1042.) Standards are provided in the Act that must guide Board determinations in enforcement proceedings, which would include determinations as to the amount of the fine imposed. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1033(c), 1002(b), 1020. See Hill v. Relyea (1966), 34 Ill.2d 552.) A hearing with procedural safeguards is required at which evidence of violations must be presented. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1031-1033.) Significantly, the investigatory and prosecutorial functions are carried out by one agency (Ill. Rev. Stat. 1971, ch. 111½, pars. 1004, 1030, 1031), while the adjudicatory function is performed by another. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1005, 1031-1033. See 1 Cooper, State Administrative Law (1965), pp. 19-20, 26.) The Board’s findings, reasons, and opinion must be published (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(a); Rockwell Lime Co. v. Commerce Com. (1970), 373 Ill. 309, 322-323.), and the Board’s own rules require written decisions embodying findings, conclusions, and reasons for its decision on all material issues of fact, law, or discretion presented on the record. (PCB Reg. #331(a).) The adherence of the Board to its own rules would apparently require it to justify the amount of the fine imposed in an enforcement proceeding since this is a discretionary act.5 Finally, to insure that these safeguards are followed, judicial review pursuant to the Administrative Review Act is available. Ill. Rev. Stat. 1971, ch. 111½, par. 1041.
Section 11 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 274) extends administrative review to cover all questions of law and fact presented by the record. The reviewing court may determine whether the Board’s actions and authority are constitutional (Commonwealth Edison Co. v. Pollution Control Board (1972), 5 Ill.App.3d 800); whether Board actions exceed statutory authority (Citizens Utilities Co. v. Illinois Pollution Control Board (1972), 9 Ill.App.3d 158; A. E. Staley Manufacturing Co. v. Environmental Protection Agency (4th Dist. 1972), 8 Ill.App.3d 1018, 290 N.E.2d 892); whether the Board has considered only data, opinions, and testimony adduced at the hearing appealed from and in the record (North Shore Sanitary Dist. v. Pollution Control Board (1972), 2 Ill.App.3d 797); whether the legislative standards have been properly construed and applied in imposing penalties (Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App. 711, 292 N.E.2d 540); whether the Board’s orders are sufficiently certain (Citizens Utilities Co. v. Illinois Pollution Control Board (1972), 9 Ill.App.3d 158); and whether the Board’s findings and determinations are supported by the evidence. Seegren v. Environmental Protection Agency (2d Dist. 1972), 8 Ill.App.3d 1049, 291 N.E.2d 347; McIntyre v. Pollution Control Board (3d Dist. 1972), 8 Ill.App.3d 1026, 291 N.E.2d 253; Wachta v. Pollution Control Board (1972), 8 Ill.App.3d 436.
The reviewing court has before it the record of proceedings, including findings and reasons in which the violation was found and the penalty fixed. In such circumstances, it is possible, giving due deference to Board discretion, to judge whether the Board properly considered legislative standards, did not consider impermissible bases in fixing the penalty, and did not act arbitrarily or capriciously, or otherwise abuse its discretion in penalizing the violator. Thus if the penalty imposed is clearly unwarranted and excessive the reviewing court may refuse to sanction it, or remand the determination for proper consideration, or only affirm so much of the penalty as is “justified by the record.” Ill. Rev. Stat. 1971, ch. 110, par. 275(e) (f) and (g), made apphcable to appellate review by Supreme Court Rule 335(h)(2) (IU. Rev. Stat. 1971, ch. 110A, par. 335(h)(2)); Citizens Utilities Co. v. Illinois Pollution Control Board (1972), 9 Ill.App.3d 158.
Finally, while not raised by petitioners, the majority felt compelled additionally to hold the statutory authority in question fatally ambiguous. In my view, section 44 (Ill. Rev. Stat. 1971, ch. 111½, par. 1044) dealing with criminal sanctions, clearly is meant to be construed independent of the Board’s authority to impose civil sanctions. Section 42 (Ill. Rev. Stat. 1971, ch. 111½, par. 1042) prescribes limits the Board must follow in fixing the penalty and provides for a civil action to collect the penalty after its assessment. In cases of administrative review recovery of the penalty by resort to a separate civil action is unnecessary, since the reviewing court has the power to enter judgment upon which execution may issue if it affirms the Board’s determination. Ill. Rev. Stat. 1971, ch. 110, par. 275(h).
The imposition of flexible monetary penalties by the Pollution Control Board can be regarded as a necessary power to achieve an urgent legislative purpose which is sufficiently circumscribed by standards, procedxxral safeguards, and meaningful judicial review. For these reasons I would not consider section 33(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(b)) violative of the separation of powers provision of the Illinois constitution. I woxxld therefore affirm the Board’s order and enter judgment for the amounts specified therein.
Shortly after the refuse disposal activities began the Environmental Protection Agency notified two of the petitioners that they were in violation of the Act and directed them to cease operations, which they did not do. Four months later shortly after the Agency filed a complaint, the city of Waukegan requested a permit for its already accomplished dumping.
E.g., Ill. Rev. Stat. 1971, ch. 111½, pars. 116.54, 116.90, 170, 185.11.
E.g., Ill. Rev. Stat. 1971, ch. 111½, pars. 155, 729, 1042.
E.g., W. J. Dillner Trans. Co. v. Public Utility Com. (1959), 191 Pa. Super. 136, 155 A.2d 429.
The Board in the instant proceeding failed to give reasons for choosing to fine the City of Waukegan $1000 and the remaining petitioners $250 each. However, petitioners do not challenge this deficiency.