dissenting:
I dissent from the opinion in so far as it affirms the imposition of a civil penalty. Upon this record such penalty is purely punitive rather than in aid of the enforcement of the statute. City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 313 N.E.2d 161; Southern Illinois Asphalt Co. v. Pollution Control Board, 60 Ill.2d 204.
The order at issue approves the compliance program of Ralston, but the very language of the finding in assessing the penalty1 demonstrates that it is imposed as punishment for alleged violations occurring prior to the complaint.
The board found that the evidence did not support many of the violations charged. Rather than being recalcitrant, the record shows that some 6 months prior to filing the complaint Ralston had obtained a contract for gas and a new boiler but that such contract was withdrawn by the supplier, and that it was thereafter necessary to find an oil supplier and prepare plans for an oil-fired boiler. The record shows that Ralston had ceased to manufacture fish meal prior to the filing of the complaint, and that machinery and equipment modifying the plant operation in terms of dust control was on order but that delivery was delayed. The record fails to show recalcitrance, and the abatement of the asserted violations imposes the only sanctions reasonably necessary. Bresler Ice Cream Co. v. Pollution Control Board, 21 Ill.App.3d 560, 315 N.E.2d 619.
In Southern Illinois Asphalt Co., the court noted that section 33(b) (Ill. Rev. Stat. 1973, ch. 111½, par. 1033(b)) provided for procuring compliance through civil penalties in addition to, or in lieu of, a cease- and-desist order.2
Civil penalties have been upheld where there was no attempt to correct certain air violations and the fine was in addition to a cease-and-desist order (Incinerator, Inc. v. Pollution Control Board, 59 Ill.2d 290, 319 N.E.2d 794), and where equipment had been installed despite of a denial of a permit to do so. Mystic Tape v. Pollution Control Board, 60 Ill.2d 330.
By standards of the cited cases, it seems clear that upon this record the fine imposed is for purely punitive purposes and does not purport to reasonably aid in the enforcement of the statute.
"Considering the duration of the offense, a much higher penalty would be appropriate.”
“Such order may include a direction to cease and desist 000 and/or the imposition by the Board of civil penalties * *