PETITION for review of order of Pollution Control Board.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 29, 1975.
Corn Products Corporation International, Inc. (CPC), appeals pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) from an order entered by the Illinois Pollution Control Board (Board) finding it in violation of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a) *fn1) in its operation of feed dryers and in violation of Rule 3-3.112 *fn2 of the Board's Rules and Regulations Governing Air Pollution in its operation of boilers at its Bedford Park, Illinois, plant. The Board assessed penalties of $7,500 for the statutory violation and $2,500 for the rule violation.
The issues presented for review are:
(1) whether the Board erred in finding CPC in violation of section 9(a) of the Act and assessing a penalty without clearly indicating its consideration of the factors set forth in section 33(c) of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1033(c));
(2) whether the Board erred in finding CPC in violation of Rule 3-3.112 and assessing a penalty without clearly indicating its consideration of the factors set forth in section 33(c) of the Act;
(3) whether the Board erred in finding CPC in violation of Rule 3-3.112 in that such finding is not supported by the evidence; and
(4) whether the Board erred in imposing fines totaling $10,000 where the imposition of a penalty will not aid in the enforcement of the Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1001 et seq.).
The Environmental Protection Agency (EPA), through the Attorney General of Illinois, on February 9, 1972, filed a complaint with the Board against CPC alleging that odorous emissions from its corn wet milling plant in the Village of Bedford Park, Illinois, violated section 9(a) of the Act. The complaint, further alleging that particulate emissions from the plant's boilers violated the Board's Rule 3-3.112, sought a hearing and prayed for an order both requiring CPC to cease and desist its violations and assessing penalties. A hearing was held and evidence taken. Subsequent to the hearing and prior to the entry of the order, CPC and the EPA entered into and filed with the Board a stipulation and proposal for settlement which was incorporated by reference into the order.
CPC employs 2,150 people at the plant in issue, 90 of whom are employed in the operation of the feed, germ, gluten and other process dryers. Though the emissions originated, apparently inherent to dryer operation, from all the dryers, the main source of emission and the sole concern of the proceedings below was the feed dryers.
In the summer of 1971, CPC began a comprehensive development of alternatives to reduce the odorous nature of these emissions. These investigations disclosed, in the summer of 1972, that odorous emissions could be reduced by 50% by changing the functions of the dryers. Instead of each of the four feed dryers independently drying all the various by-product ingredients at an average inlet temperature of 1000°, two dryers would be used to pre-dry fibrous materials at a higher inlet temperature since such material elicited less odor. The other two dryers would be subsequently used to finish drying the fibrous materials and other by-products at a lower inlet temperature. Evidence was presented as to the difficulties encountered and expected with other control methods and experiments CPC was conducting to improve these methods.
As to the boilers, three are coal-fired and were installed in 1954. Two boilers installed in 1968 are gas-fired and replaced 10 coal-fired boilers which were no longer safe. Due to local ordinances *fn3 passed in 1970 limiting sulfur emissions from boilers, CPC attempted to convert to gas. These efforts were unsuccessful because of the unavailability of fuel which, indeed, prevented CPC from operating its existing gas-fired boilers at full capacity. Subsequently, CPC was able to obtain low sulfur coal from Appalachia at a higher ash content (a source of particulates) than was desired, promised or anticipated. This problem combined with a coal strike in October and November of 1971 created a situation where particulate emission was well in excess of the rate allowed by Rule 3-3.112. By March of 1972, this rate was reduced to below the allowed rate.
The area surrounding the plant is "pedominantly residential" to the east, northeast and southeast of the plant. The areas to the south, west and north of the plant are "predominantly industrial." At the hearing, 11 citizen witnesses for the EPA testified to smelling burnt food or corn odors two to three times a week, and that such emissions interfered with their health or enjoyment of life and property. Five citizen witnesses for CPC alleged the burnt corn odor did not bother them or interfere with their health or enjoyment of life and property.
In the stipulation and proposal for settlement incorporated by reference into the Board's opinion and order, CPC agreed to modify its feed drying operations by changing the functions as described above. Explicitly left to the discretion of the Board was whether the operation of the boilers had violated Rule 3-3.112 and whether penalties should be assessed for any violations involving either the feed dryers or boilers. The Board did find violations as to both the feed dryers, for which it assessed a ...