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Darling & Co. v. Pollution Control Board

APRIL 23, 1975.

DARLING & COMPANY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

Darling and Company, an Illinois corporation (hereinafter Darling), filed a petition requesting review of an order of the Illinois Pollution Control Board (hereinafter Board) finding Darling in violation of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1001 et seq.) (hereinafter Act) by creating an odor nuisance at two of its Chicago factories. The petition for review is properly before us pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1041) and is in accordance with Supreme Court Rule 335 (Ill. Rev. Stat. 1973, ch. 110A, par. 335).

The proceedings below commenced when, on November 3, 1971, the Illinois Environmental Protection Agency (hereinafter E.P.A. or Agency) filed a complaint with the Board charging inter alia that Darling was operating its factory located at 4201 South Ashland Avenue in Chicago in such a manner as to cause or allow the emission of certain "odors" into the environment so as to cause air pollution either alone or in combination with contaminants from other sources, in violation of section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1009(a)). In response to this complaint, on February 23, 1972, Darling filed an application seeking a variance in regard to its operations at the 42nd Street plant in view of its plans to construct a new facility to replace the old one and abate any objectionable odor emissions. An additional complaint was subsequently filed by the Agency against Darling charging essentially the same violations as in the original complaint with respect to another of Darling's factories, located at 4550 South Racine Avenue, in Chicago.

The proceedings were consolidated by the Board for hearing, and extensive hearings were held by the Board on 10 different dates from July 26, 1972, to December 5, 1973. On March 14, 1974, the Board entered a written opinion and order. In that opinion and order, the Board found that odor emissions from both of the Darling plants in question violated the Environmental Protection Act, and a $5000 fine was imposed for those violations. The Board further ordered that Darling cease and desist emitting nuisance odors from its 45th Street facility within 120 days from the order. Darling's request for a variance with regard to the 42nd Street facility was granted, however, until January 31, 1975, and that portion of the Board's decision is not before us in this appeal.

Darling is engaged in the business of "inedible rendering" — that is, it processes inedible animal scrap waste into various commercially usable products. It has operated in what was once commonly known as the Stockyards Area of Chicago for almost 100 years. The plant located at 42nd Street and Ashland Avenue has been in operation since 1882 and is used for the production of bone glue. We are informed that this is the only bone-glue plant presently operating in the State of Illinois. The other rendering facility located near 45th Street and Racine Avenue was built in 1949, and is used to produce a variety of products from animal scrap waste, viz.: (a) tallow, which is used for soap and other items; (b) meat meal, which is used as a protein ingredient in animal and pet food; (c) bone meal, which is a mineral feed supplement for poultry and dairy animals; (d;) fatty acids and glycerine, used in such things as cosmetics, automobile tires, plastics and organic chemicals.

The crux of Darling's three-part argument on appeal is that the evidence at the hearings failed to establish that Darling did not comply with the objective standards set forth in Rule 802 of the Illinois Pollution Control Board rules and regulations contained in chapter 2, part VIII, Odors, entitled "Inedible Rendering Process" and dealing with "objectionable odor nuisance" in that type of business operation, and that therefore the Board's findings are in direct contravention of the Board's own standards and amount to both a violation of the Environmental Protection Act and of Darling's right to due process of law. It is asserted that in adopting the standards contained in Rule 802, the Board is precluded from finding that the emission of odors by an inedible-rendering plant below the levels set out in Rule 802 amounts to a violation of the Act. The Board is further claimed to have improperly ignored its own objective scientific standards contained in the rule and to have instead relied almost exclusively on the subjective testimony of lay witnesses in finding Darling in violation of section 9(a) of the Act — testimony which is deemed insufficient as a matter of law. Darling finally contends that it was denied due process of law and that the Board violated the Act because the Board failed to consider the objective scientific evidence relating to odor emissions that was presented by Darling.

The testimony presented at the hearings included first that of a number of private citizens who lived and/or worked in the Stockyards Area, and some Agency employees, regarding the severity of the odor which they personally detected and which they believed was emitted from the Darling plants. Other Agency employees testified that they conducted "scentometer" tests *fn1 near the Darling plants, and the results were presented in one of the Agency's exhibits. Henry Friedrich, vice-president of an independent environmental engineering consulting firm, testified on behalf of Darling regarding his evaluation of odor emissions at the 42nd Street Darling facility by means of an "odor panel" technique, including the use of "stack tests." *fn2 He questioned the results of the scentometer tests conducted by the Agency for various reasons and identified 16 or more other possible sources of odor in the vicinity of the Darling plants which may have contributed to the scentometer results and to the subjective opinions of the witnesses.

Darling throughout its argument on appeal places great emphasis on the testimony of Mr. Friedrich, and on Rule 802, which provides as follows:

"Inedible Rendering Process.

(a) The provisions of this regulation shall not apply to any device, machine, equipment, or other contrivance used exclusively for the processing of food for human consumption and to food service establishments.

(b) No person shall operate or use any device, machine, equipment, or other contrivance for the inedible rendering of animal or marine matter unless all gases, vapors and gas entrained effluents from these processes shall be controlled in such manner as to effectively abate any objectionable odor nuisance. In the event that the rendering processes of more than one company are contributing to the objectionable odor nuisance, abatement shall be deemed effective when the odor concentration from each process is not more than 120 odor units/cubic foot as determined by Mills[*] adaptation of ASTM D-1391-57. [Emphasis added.]

[*] As described in paper entitled "Quantitative Odor Measurement" by John L. Mills, et al., presented at the 56th Annual Meeting of APCA, Sheraton-Cadillac Hotel, June 9-13, 1973, Detroit, Michigan."

(c) An objectionable odor nuisance exists when a trained state inspector, upon the receipt of a complaint from one resident or property owner in the area affected shall determine that these ...


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