ILLINOIS POLLUTION CONTROL BOARD

February

21,

1974

ARBOR

THEATRE

CORP.,

an

Illinois

Corporation

vs.

)

PCB 72—317

CAMPBELL SOUP COMPANY,

a

New Jersey Corporation

Mr. Lloyd Dyer,

counsel for Arbor Theatre Corporation.

Mr. John Ward, counsel for Campbell Soup Company

OPINION AND ORDER OF THE BOARD

(by Dr. Odell)

Arbor Theatre Corporation

(Arbor)

filed a Complaint

against Campbell Soup Company

(Campbell)

on

July 28,

1972, alleg-

ing violations of Sections 9(a) and

(b) of the Environmental

Protection Act

(Act)

and Rule 802 of Chapter Two, Air Pollution

Regulations

(Chapter Two).

The Complainant averred that

Respondent discharged certain gaseous materials into the air

creating an odor problem and carried on its activities without

an operating permit, the latter constituting a violation of

Section 9(b)

of the Act.

Campbell operates a facility west of Prince Crossing Road

and south of North Avenue in West Chicago, Illinois

(see map

page 2).

Campbell makes compost at the facility as well as operat-

ing a mushroom farm on the 200—acre plot.

Compost is produced by

combining hay, corncobs, manure and commercial fertilizer and

cooking

it in a rotary kiln,

Ninety-ton daily batches

(ricks)

are

produced on a year—round basis.

Complainant, who operates a drive-

in theatre within several hundred feet to

the

northeast of

Respondent, argues that the odors emanating from the compost

violate the Act and the Air Pollution Regulations.

Two

hearings were held.

The first one occurred on

July 24,

1973;

and the second took place on September

20,

1973,

Briefs

were filed by both parties.

Several motions were made by the parties in their briefs.

First, each side requested that the Board award him attorneys~

fees.

Section 45(b)

of the Act was cited by the parties.

It

states:

11 —307

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C

z

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0

Cl)

rInc

e

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—3—

(b)

Any person adversely affected in fact by a

violation of this Act or of regulations adopted

thereunder may sue for injunctive relief against

such violation.

However,

no action shall be brought

under this Section until

30 days after the plantiff

has been denied relief by the Board under paragraph

(b)

of Section 31 of this Act~ The prevailing party

shall be awarded costs and reasonable attorneys’

fees.

The parties have misread this Section.

The purpose of this Section

is to grant a court the power to award attorneys’

fees when in-

junctive relief is sought after Board relief has been denied. The

Board’s power to grant attorneys’

fees rests on Section 33(a)

of

the Act.

Here, however, the burden of proof has not been met to

show harrassment on the part of Complainant or total disregard for

statutory duty on part of the Respondent.

Attorneyst

fees are

therefore denied.

Second, Respondent Campbell sought to introduce into

evidence

(Resp. Ex.

#2 for identification at R-214) Judgment

Order No. 68—1982-G entered on October 15,

1971,

in the case of

Arbor Theatre Corp.

v. Campbell Soup Company.

The issue in that

case was whether Campbell ha& created a common law nuisance in

the way it ran its facility.

Here, Respondent argued

(R-216)

“I

would point out that the basic issue in both cases is

identical,,

that of nuisance

as far as the central issue of whether or

not nuisance existed,

I think that is relevant

•‘.

We hold

that the hearing officer was correct in not allowing the Judgment

Order to be entered into evidence.

A common law nuisance action

is different from the statutory action permitted under Section

9(a).

Whether or not a nuisance is established in a common law

action has no res judicata effect~here because a nuisance is not

premised on the determination of the same issues that establish

a violation under the Act.

Turning to the merits, we find that no violation has been

established under Section

9(a)

of the Act, but that Respondent

has violated Section 9(b).

Section 9(a)

is violated when air pollution is discharged

into the atmosphere

in sufficient quantities and of such character-

istics

and duration as to be injurious to human, plant, or animal

life,

to health or property or to unreasonably interfere with the

enjoyment of life or property (Section 3b).

No physical injury

to human life was established.

Several citizens complained that

they could not sleep at times because of the odors

(R-75,

81,

99).

11

—

309

---

The

key

issue

in

this

case

is

whether

an

unreasonable

interference

with

the

enjoyment

c.E

life

or property has

occurreth

I

~1uch

c:Lt±zentestimony was presented on both sides on the issue of

whether

the

odors were ~‘objectionab1e~. The general pattern

I

seemed

to

be that those who lived upwind of

the

odors were not

bothered

(R~IO5,248), while those

downwind

were upset

on

I

occasion

(R~19~

75,

85,

99,

118)~

On

the other hand, testimony

was introduced that the area

is

still

rather rural

(R—93)

There

I

are

approxi:rnateiy

70

horses

in

the

area,

including

38

concentrated

at.

the

riding

stables

north

of

Respondent~s

property

(Resp.

Ex~

~‘4:LA),

One

llama

also

resides

in

the

conmmnity.

Many

citizens

did

~t

mind

the

~farrnodor~

(R-223)

and

one individual stated posi—

t:Lve.Ly

that

he

liked

the

smell

(R—255)

Testimony

was

introduced

thai:

fi~hy

odors

emanate from a branch

of

the

Du

Page

River

(R—234)

~thichruns south approximately

600

feet

east.

of

the

Comp1ainant~s

I

L~roperty. Complainant

introduced

evidence

that

the

odor

problems

h~ive

persisted since be

beqan

his ~r:~v~—i~

theatre

business ~n

I

1961

~R~1)

r~e

described

bhe

c~dor as

fishy

(R~38,

39,

40)

while other3 said it smelled like

rot~ing

comoost

(R—48)

or de~

I

cayed

straw

or

nanure

(R~255)

it

was

generally

agreed

that

the

cäor

problems

were

the

worst during Lhe warm

summer

months

and

that th~~iir~dwas

a

key

factor

in determining the extent

of

the

prob1e~

The

intensity anü frequency 3f

i:he

problem

has

decreased

:z~uhstantialiyduring the last

year

(R~1, 75,

82~

88,

89,

98~ 101,

253)

Testimony

was

offered

that

customers

at the drive~-in

~:i~eat.re

cox~oiainea

of

the

odors

(F~.LO~)and

that

money had

to

be

:~fundeäsor~etiraes (R—24)

All

~f

this

testimony

est

:1L~hedthat

there

has been

ir~tt~~ce

with

life and ~ro~ert~y,but.

to

find

a

violation

cf

I

~ ~1a~~e

must

rind

that

the

interference

has

been

unreason~

~

It is :~~ot

every

interference

~i~h

life

and

property

that

I

~thes

a

~a)

violation,

I:

o~~y

Fi±ntkcte

(7O-~36

2.

?~

~23

~e~~mber

2,

1971)

we

stateth

I

Air

pcflution

is proved if the evidence shows a

I

significant

inte~ferencewith

ti~ie

enjoyment

of

life

~

prc~:erty

that

can

be ccrrecte~.

by

the

employment

I

of

~echnc1ogy

that

~s

ava

aIJe

at

reason~bie

costa

~i?~

r~t~r~erence

has

riot beun

u~re~’~onahie,

Life

and

prooertv

I

~ ~rf?~red

with, hut Res

Dn~er~t

1

s attempts to control

~1~cn.

problem s~i~f us ~hz~t.~J:ei~.t.erferenceis justifie~L

I

:~iIIondo11:~r~

~r~t

by Campbell since 1961

~

~e

odor

probT~~e:~a

(R~~

C~.r~t~hc1?

has installed the

I

.~.

1

t.EImo:Lccn.i

3 17

q~in•~~

experience

in

~

rpic. ~

I

~ att~

~t

~:

E

~eo

W~

~iL

I

rc~t

~i

tne ccm~~c~

st was ~.nst~11

---

—5--.

ed in 1964;

its sole function is to reduce odors.

No other

Campbell compost-making operation in the United States

utilizes such a kiln

(R—299).

A Schneible Scrubber was

installed in 1965

(R—169)

to remove particulate matter.

Studies

were undertaken in 1967 for the purpose of controlling odors

emanating from the scrubber

(R-300).

The use of permanganate

proved unworkable because

it caused water pollution prob1erns~

Working with a small trial kiln, experiments utilizing an ozone

generator were later carried out .(R—301)

-

The Carrier

Corporation

introduced

a

method

which

seemed

promising,

but.

the

unit

was

withdrawn

from

the

market

in

1971

because

of

mechanical

di~ficu1ties (R—304).

Increasing technological data in ozone

usage finally led to the installation in early 1973 of

a packed

(acid)

scrubber and an ozonator

(R-325,

326).

The system

is

estimated to be

90

effective in reduction of organic materials.

Although tests have been made of the remaining gases emitted

from the stack,

the low concentrations have made identification

unascertainable and elimination impossible

(R-327, 33i)~

To violate Rule

802, quantitative odor measurements

US1I1

a Scentometer must be conducted as is outlined in

Rule

802

Cd)

Complainant introduced no evidence o~Scentometer

measurements~

Since Rule 802 has not been violated,

no transgression of

Section 9(a)

regarding regulation violations has accurrE~d~

Turning to Section 9(b), we hold that a

violat

occurred.

Under Rule 103(b)

(2)A of

Chapter

Two, Rc:~r~::~

~iasobliged to have an operating permit for the

operai~

its

rotary kiln by January

1,

1973

(see Chemicals a’~

Products Industry Operations as defined by Code

28 of

:i*~

Standard Industrial Classification Manuel

~1972 Editionj Gr~up

287~

Industry Number 2875).

The operating permit

(Resp~Ex~

#10) ~was not issued

by

the Environmental Protecti~on

Agencvu~L

~prii

13, l973~

This constitutes the findings of fact and conclusions

of

1a~

of the Board.

ORDER

IT

IS

ThE

ORDER of

the Pollution Control Board tha~

l~ Campbell Soup Company pay a penalty of $250.00 ~or

operating its facility without a permit from January

1,

1973,

until April

13,

1973,

Payment by Respondent shall be by

certified check or money order made payable to State of Illinois,

Fiscal Services Division, Environmental Protection Agency,

2200

Churchill Road,

Springfield, Illinois 62706. Payment shall be

mailed within 35 days of

the adoption of thIs Order.

Mr. Dumelle will file a concurring opinion.

11 —-311

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—6—

I, Christan

L. Moffett,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

a~ptedon the I~1’~day of

___________,

~~nL.~eerk

1’!