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11/23/88 the Village of v. the Pollution Control

November 23, 1988

THE VILLAGE OF CARPENTERSVILLE, APPELLANT AND CROSS-APPELLEE

v.

THE POLLUTION CONTROL BOARD ET AL., APPELLEES AND CROSS-APPELLEES (CARGILL, INC., APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

531 N.E.2d 400, 176 Ill. App. 3d 668, 126 Ill. Dec. 105 1988.IL.1701

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Petitioner, Village of Carpentersville (Village), brings this petition for review from a decision of the Illinois Pollution Control Board (Board), which declared a portion of the Village's zoning ordinance preempted by a condition in a permit issued by the Illinois Environmental Protection Agency (Agency) to Cargill, Inc. (Cargill). Cargill brings a cross-appeal challenging the necessity of the requirement imposed by the Agency as a condition of the permit.

The Village raises several issues on appeal. However, we find we need only address one, to wit, whether the Village's zoning ordinance is preempted by the condition in the construction permit issue by the Agency.

Cargill's plant, located in the older section of the Village, manufacturers resins for the paint and coating industry. The plant is zoned M-2 industrial. As part of the manufacturing process, a waste known as "water of reaction" is generated. This waste is a hazardous waste which must be disposed of in accordance with Federal and State environmental regulations. The waste is disposed of in a liquid waste incinerator.

In late 1985, due to complaints of odors, Cargill undertook steps to identify and control any odors that might be emanating from the plant. Around March 1986, the Agency requested that Cargill temporarily shut down its liquid waste incinerator pending construction of certain proposed improvements or modifications. As a result, Cargill has transported the waste to an off-site disposal facility. In addition to being expensive ($60,000 to $70,000 per month), Cargill maintained that the transfers could be a possible source of odors.

In February 1987, Cargill requested a construction permit from the Agency to make certain modifications to the existing incinerator. The permit was issued but was subject to certain conditions imposed by the Agency. Cargill and the Agency reached agreement on all but one condition, which is as follows:

"The height of the incinerator discharge stack shall be raised to 100 feet above the grade. The incinerator shakedown and emission testing may be performed with the existing short stack; however, incinerator operation will not be allowed until the stack has been raised to the specified 100 feet."

At the public hearing held on October 5, 1987, the Agency presented testimony that since the present stack was only 25 feet above the grade level, there was a possibility of exacerbating the existing odor problem due to the operation of the incinerator. The Agency therefore required that the stack be raised to 100 feet. The 100-foot level was arrived at by applying the general engineering rule of thumb that requires that the height of a stack be 2 1/2 times above the height of the nearest obstruction in order to avoid any undue aerodynamic influence on the discharge from that stack. There was also the possibility of hazardous discharge if the incinerator were to malfunction.

Cargill, on the other hand, maintained that the Agency did not identify its incinerator as a source of the odor problem. Moreover, the incinerator was equipped with a monitoring device and would automatically shut down in the event of a malfunction. Nevertheless, Cargill was willing to comply with the aforesaid condition in the event it was not prevented from doing so by the Village's zoning restriction which limited buildings to a height of 35 feet.

Following the hearing, Cargill and the Agency filed written briefs on the issues. While Cargill argued against the imposition of condition of raising the stack to 100 feet, it also maintained that the Village's zoning ordinance was preempted by the ...


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