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Armour-dial, Inc. v. Pollution Control Bd.

OPINION FILED MAY 11, 1978.

ARMOUR-DIAL, INC., PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

On February 1, 1977, Armour-Dial filed a petition for variance with the Illinois Pollution Control Board (hereinafter the Board.) The petition sought a variance from section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1009(a)) (hereinafter the Act) which prohibits air pollution and discharges in violation of the Board's rules. The petition also sought a variance from Rules 205(f) and 103(b)(6)(A) of the Board's air pollution regulations, which respectively limit discharge of odor producing organic materials to 8 pounds per hour and bar issuance of operating permits to emission sources which either violate the Act or the rules, or which do not have a variance from the Board. The People of the State of Illinois, represented by the Attorney General, who had previously filed two suits in the circuit court of Kane county, sought and were granted leave to intervene. The Environmental Protection Agency (hereinafter the Agency), recommended that the variance be denied and, following a public hearing, the Board denied the variance on July 7, 1977. Pursuant to section 41 of the act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1041), Armour-Dial has petitioned this court for judicial review of the Board's decision.

Armour-Dial first presents arguments concerning the appropriate standard of review to be applied in this case. Armour-Dial also argues that the Board erred: (1) in finding that any hardship suffered by Armour-Dial was self-imposed and that the public harm herein outweighed the hardship imposed upon Armour-Dial; and (2) in denying the variance because of an existing odor problem and possible contribution to a violation of the Federal and State ambient air quality standards and regulations. In addition to answering the arguments raised by Armour-Dial, the respondents (the Board, the Agency and the People) make several additional arguments which may be summarized as follows: (1) the petition should have been denied because of procedural deficiencies; (2) the Board does not have authority to grant variances from the provisions of section 9(a) of the Act; (3) under the circumstances of this case the Federal Clean Air Act, as amended in 1970 and 1977 (42 U.S.C. § 4901 et seq.) prohibits granting the requested variances; and (4) certain exhibits offered by Armour-Dial are irrelevant and their use was properly limited.

• 1-3 Prior to oral argument in this case both sides filed various motions with this court, most of which we disposed of at the time. We did, however, order taken with the case a motion by Armour-Dial to strike portions of the respondents' brief. Armour-Dial asks first that we strike the respondents' additional statement of facts because of failure to comply with Supreme Court Rule 341(e)(6) (Ill. Rev. Stat. 1975, ch. 110A, par. 341(e)(6)). We have examined the additional statement of facts and find that, while it is not perfect, it does contain appropriate references to the pages of the record on appeal in most places. In addition, it is not so replete with comment and argument as to render it useless to this court. Armour-Dial further asks that we strike all portions of respondents' brief dealing with the effect of the Federal Clean Air Act amendments. Armour-Dial takes the position that these matters should have been raised by the Agency or the intervenors before the hearing and that the Board should have the first opportunity to interpret or apply the aforementioned statutes. Armour-Dial does not cite, and we are unaware of, any authority which requires the Agency or anyone else to raise any legal arguments prior to the hearing on a variance petition. Indeed, in this particular case, the parties were reminded by the hearing officer on several occasions that they were to present their legal arguments in closing arguments after the hearing. Further, we note that the arguments which Armour-Dial seeks to have stricken, with the exception of the one concerning the 1977 amendments to the Clean Air Act, were made in the closing arguments of the Agency and the intervenor. Thus, Armour-Dial has been well aware of most of these arguments for some time and the Board did have the opportunity to pass upon those particular issues. Although the Board chose not to do so, we do not believe that constitutes a bar to our review of these issues should we deem it necessary to reach them. It is clear to us that the proper interpretation of statutes is a judicial function. We therefore deny Armour-Dial's motion to strike the cited portions of the respondents' brief and pass to the merits of the case before us.

• 4 Armour-Dial's first argument concerns the proper standard of review to be applied in this case. They contend that the findings of the Board "must be reversed if they are unsupported by the manifest weight of substantial evidence, or if they are arbitrary, capricious, unreasonable or otherwise not in accordance with law." In essence, Armour-Dial urges that we apply a series of three separate tests and invalidate the Board's findings if any of the tests is not met. The respondents reply that the manifest weight of the evidence test is the proper standard of review of Board decisions to grant or deny variances. Respondents also point out that the burden of proof rested upon Armour-Dial to convince the Board that a variance should be granted, as well as it being petitioner's burden in this court to demonstrate that the Board's decision was incorrect. On this issue we tend to agree with respondents. In Monsanto Co. v. Pollution Control Board (1977), 67 Ill.2d 276, 367 N.E.2d 684, the supreme court took great pains to delineate which standards of review are applicable to the various actions taken by the Board. There the supreme court held that in reviewing rule-making proceedings and conditions attached to variances, which are an exercise of the quasi-legislative powers of the Board, the arbitrary and capricious standard is to be used. However, with regard to the grant or denial of a variance itself, the supreme court said:

"This decision is essentially quasi-judicial, and, as such, must be supported by a written opinion with specific findings which are entitled to a presumption that they are prima facie true and correct. [Citation.] Nonetheless, if the factual determinations of the Board, or of any administrative agency, are contrary to the manifest weight of the evidence, the reviewing court is empowered to reverse the agency's findings." (67 Ill.2d 276, 289, 367 N.E.2d 684, 689.)

We therefore will apply the manifest weight of the evidence standard in reviewing the findings of the Board.

In 1964 Armour-Dial opened its plant near Montgomery, Illinois, which manufactures toilet soap from tallow, coconut oil and caustic soda. It has approximately 700 employees. Commencing in 1965 it became apparent that there was an odor problem associated with operation of the Armour-Dial plant. Thereafter it is undisputed that Armour-Dial undertook various activities in an attempt to eliminate or control the odor problem. (Armour-Dial, Inc. v. Environmental Protection Agency, 8 Ill. P.C.B. Op. 343 (1973).) As a result of various studies it was eventually determined that organic material released from the oily cooling water tower into the atmosphere was probably the major source of odors emanating from the plant. In 1973 Armour-Dial submitted a plan to the Board to replace the barometric condensers on its fatty acid trains with surface condensers. The plan was based upon Armour-Dial's observations in 1972 that the technique had been successfully used to reduce odors at a soap manufacturing plant in Germany. The initial variance (8 Ill. P.C.B. Op. 343) was allowed to enable Armour-Dial to submit final design plans and schedules for installation of the surface condensers. A further variance to allow installation of the proposed system, estimated to cost $3,900,000 was granted in 10 Ill. P.C.B. Op. 261 (1973). Under the terms of that particular variance the installation of the surface condensers was to be completed by August 31, 1975. Due to the one-year limitation on variances, the variance itself expired in December 1974. Approximately one week after the grant of the second variance, the Board, at the request of Armour-Dial, modified the variance order to allow substitution of a biodegradation program for the previously approved surface condenser program. The substituted program had the twin benefits of a shorter installation time and a substantially reduced cost. Armour-Dial admits that at the time the biodegradation program was approved "all parties understood that if the experimental program did not succeed Armour-Dial would then proceed to install surface condensers." The evidence adduced herein indicates that Armour-Dial told everyone the time lost if the system failed would be only six months to one year.

The biodegradation system operated on the principle of diverting organically contaminated waters to the Armour-Dial wastewater treatment facility. A substantial portion of the organic materials would be removed in that process and clean water would be returned to the oily cooling water tower. Thus, the amount of organic material reaching the tower would be substantially reduced and organic discharges would likewise be reduced, thus reducing the odor.

Mr. Moffatt, the director of engineering for Armour-Dial, testified that the company did install the system in 1974. Starting with September 1974 and continuing through March 1975, the Aurora Sanitary District, which received the discharges from Armour-Dial's plant, issued a series of citations to Armour-Dial for discharging excess amounts of suspended solids which caused a considerable upset condition within the Sanitary District plant. In April 1975 Armour-Dial discontinued its biodegradation system. Thereafter, in an attempt to utilize the system to at least some extent, they leased sludge dewatering equipment and began to haul biosolids from the plant. At the time of the hearing herein, in May 1977, the biodegradation system, in connection with the sludge dewatering operation, was being used on an intermittent basis.

Following the excess discharge problems to the Aurora Sanitary District, Armour-Dial apparently undertook a program of re-evaluation of the biodegradation system and decided that the wastewater treatment facility would need to be expanded to utilize the system. At a December 1975 meeting of Armour-Dial personnel, it was decided to expand the wastewater treatment facility and to institute other systems within the plant which would reduce the loads reaching the wastewater treatment facility. In January 1976 Armour-Dial commenced to re-evaluate their total environmental control program. In May 1976 the board of directors of the parent corporation approved a new expanded environmental control program which was estimated to cost between $11 and $13 million. The program included not only the original replacement of barometric condensers with surface condensers on the fatty acid trains, but also replaced the condensers in other portions of the chemical process. The existing dust collectors were to be replaced with new, multicycle dust collectors and the wastewater treatment facility was also to be expanded. With regard to the chemical process, which everyone herein apparently believes is the major cause of emissions and odors, nothing but engineering work was scheduled to be done until after August 1977. No actual installation of equipment within the chemical process portion of the plant was scheduled until January 1978 and the total installation of chemical process equipment would not be completed until November 1979. Armour-Dial's interim reductions in levels of emissions were to be 3.3% in January 1978, 6.1% in July 1978, 40% in November 1978, 65% in June 1979 and 73.3% upon completion of the program. An examination of the proposed project, therefore, reveals that no significant decrease in estimated emission levels would occur until late 1978, approximately halfway through the installation of the new chemical process equipment.

Although Rule 205(f) of the Board's air pollution regulations limits the emission of odor-producing organic materials to 8 pounds per hour, Armour-Dial's own witnesses calculated that the plant emits 16 or 17 pounds per hour. The Agency, in its recommendation, calculated the emissions at approximately 35 pounds per hour and other rates far in excess of that were mentioned. Apparently, however, Armour-Dial is the only one who has ever done any testing to determine the emission rates from their oily cooling water tower or any other sources within their plant.

Considerable evidence was also introduced concerning a study done by Air Resources, Inc., at the request of Armour-Dial, to determine the plant's contribution to odors and ground-level hydrocarbon concentrations in the vicinity. The conclusion of Air Resources was that Armour-Dial did not cause or contribute to the ground-level concentrations of hydrocarbons in the vicinity of the plant but that perhaps such concentrations were the result of automobile emissions and natural sources. The study itself consisted of a section of modeling, during which Air Resources attempted to predict, based upon data made available to it concerning Armour-Dial's emission levels, where the hydrocarbon and odor concentrations from the plant would be the greatest. As a result of the modeling calculations, two sites were selected at which to conduct actual monitoring of hydrocarbon concentrations. Neither site selected was exactly where the predicted level of hydrocarbons would be the highest, apparently due to the need for electrical power and other support facilities for the test equipment. Rule 309 of the Board's air pollution regulations sets an ambient air quality standard for hydrocarbons of 0.24 ppm maximum 3 hour concentration. The actual results of the monitoring indicate that the hydrocarbon levels at both monitoring sites were consistently above 1.0 ppm and in some instances well above 2.0 ppm. When the monitoring data is sorted by wind direction, the concentrations downwind from Armour-Dial are at 1.8 ppm and 1.5 ppm, respectively.

Five citizen witnesses appeared at the hearing and testified to their experiences with odor problems. All witnesses found the odors offensive in various degrees and testified that the odors at times forced people to go indoors or curtail outdoor activity, such as baseball games or hunting and fishing activities. One witness found the odors nauseating, although no other witnesses testified to actual adverse physical effects from the odors. Some of the witnesses had filed previous complaints with Armour-Dial concerning the odors. In all instances Armour-Dial had treated the people courteously and had corrected several ...


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