ILLINOIS POLLUTION CONTROL BOARD

April

17,

1973

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

 PCB 72—158

ROYAL PACKING COMPANY,

 INC.,

Respondent.

John W. Leskera, Assistant Attorney General, on behalf of the

Environmental Protection Agency;

Leo H.

 Konzen,

 on behalf of Royal Packing Company,

 Inc.

OPINION AND ORDER OF THE BOARD

 (by Mr. Seaman):

By complaint filed on April 14,

 1972,

 the Environmental

Protection Agency

 (“Agency11)

 charged the Royal Packing Company,

Inc., owner and operator of certain facilities including but

not limited to an inedible rendering plant located at

 St. Clair

Avenue and Ice Plant Road, National Stockyards, Illinois.

The

Agency further charged that on or before September 20,

 1971,

that the Respondent discharged obnoxious odors and other

contaminants into the atmosphere so as to cause or tend to cause

air pollution,

 either alone or in combination with contaminants

from other sources, in violation of Section 9(a)

 of the Environ-

mental Protection Act

 (“Act”) (Ill.

 Rev.

 Stat.,

 1971,

 Ch. 111

 1/2,

§1009(a)) and in violation of Rule 3-3.280 of the Rules and

Regulations Governing the Control of Air Pollution

 (hereinafter

“Air Rules”), continued effective pursuant to Section 49(c)

 of the

Act.

Further,

 on or about December, 1967,

 Respondent caused or

allowed the installation and/or operation of a blood dryer system

without first obtaining an installation permit from the

Complainant in violation of Section

 9(b)

 of the Act and Rule

3-2.100 of the Air Rules.

 The record further indicates that on

January

4,

 1973,

 the Complainant,

 the Agency, filed an amendment

to the complaint and substituted the following language:

 that

in the years 1969 and 1970, Respondent caused or allowed the

installation and/or operation of a blood dryer system without

first obtaining an installation permit from the Complainant in

violation of Section 9(b)

 of the Act and Rule 3-2.100 of the

Air Rules.

7

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583

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The Respondent,

 in answer to the amended complaint, denies

all of the allegations with the exception of ownership and the

type of operation that is described in the Agency ‘s complaint as

stated above.

 In addition, the Respondent’s answer to the

amended complaint urges four affirmative defenses.

 The first

is that the definition of

 “Air Pollution”

 in Section 9(a)

of

the Act is

 “so vague, uncertain,

 and indefinite that men of

common intelligence must guess at its meaning, and citizens are

 not adequately apprised of the conduct proscribed therein, and

the person charged with violations of the Act is not fairly

informed of the nature and cause of the charges against him”.

The definition of

 “Air Pollution” is not contained in Section

 9(a)

of the Act but in Section

 3(b) and is defined as follows:

“SECTION

3

(b)

 ‘AIR POLLUTION’

 is the presence in the atmosphere of one

or more contaminants in sufficient quantities and of such

characteristics and duration as to be injurious to human, plant,

or animal life,

 to health,

 or to property,

 or to unreasonably

interfere with the enjoyment of life or property.”

It is the finding of the Board that the

 definition of “Air

Pollution”

 as defined in the Act is not vague, uncertain or

indefinite and that men of common intelligence can certainly

understand

 its meaning.

 Statutory authorization need not

delineate with scientific precision,

 the characteristics of all

types of pollution.

 To do so would be unrealistic.

The second affirmative defense goes to Rule 3-3.280 of the

Rules and Regulations Governing the Control of Air Pollution

and alleges that attempts to permit deprivation of private

property without due process of law by the use of improper and

inadequate standards and methods to prove violations

 of law, all

in violation of Article

 II, Section

 2, of the Illinois Constitu-

 tion and Article XIV, Section

1,

 of the Constitution of the

United States.

The third affirmative defense goes to Rule 3-2.100 of the

Rules and Regulations.

 The Respondent alleges that Rule 3-2.100

of the Rules and Regulations Governing the Control of Air

Pollution is illegal, void and invalid in that it unlawfully

attempts to legislate by the adoption of rules of greater scope

and breadth than authorized by the statutes of the State of

Illinois, or the attempt by the General Assembly to delegate to

the Air Pollution Control Board such authority is an unlawful

delegation of legislative power.

 That said Rule amounts to the

attempt to deprive the rights of persons to private property in

violation of Article XIV of the Constitution of the United States

and Section

 2 of the Constitution of the State of Illinois.

.—

584

—3—

We reject the Respondent’s first three affirmative defenses,

the subject matter having been covered thoroughly in

Environmental Protection Agency v. Granite City Steel Company,

PCB72-34, and C. M. Ford v. Environmental Protection Agency, and

Pollution Control Board of the State of Illinois, PCB71-307.

As to the fourth affirmative defense, the Respondent alleges

that a permit has been issued for the installation of pollution

abatement equipment,

 and also,

 the Environmental Protection

 Agency has issued an operators permit for both the blood drying

process and the meat rendering process.

 This last affirmative

defense would appear to be more in mitigation than in defense

since for the years charged in the amendment to the complaint,

to wit:

 1969 and 1970,

 the Respondent presented no evidence to

rebut the Agency’s allegations, but did in fact admit to operating

without a permit in violation of Section

 9(b)

 of the Act and

Rule 3-2.100 of the Air Rules.

In the 350 pages of testimony,

 there were two offers of

proof made by the Agency.

 The first had to do with testimony

concerning violations predating the Act or any public health

regulation.

 We think the Hearing Officer properly sustained the

Respondent’s objection.

 The second offer of proof made by the

Agency had to do with the submission of certain exhibits consist-

ing of photographs and memorandums.

 We think the Hearing

Officer properly overruled the Respondent’s objection in this

case and ratify the Hearing Officer’s Rulings.

There is no major disagreement

 on the facts of this case.

Respondent’s operation consists of the rendering of meat scraps

and bones in the manner characteristic of operations of this

kind.

 The violations alleged under Section

 9(a)

 of the Act and

of the Rules Governing the Control of Air Pollution we find have

been proven.

 Testimony by the Agency’s witnesses after having

 taken numerous scentometer readings, together with photographs

(Complainant’s Exhibits 1-5)

 to illustrate the visibility of the

plume from Respondent’s

 stack and the direction of the wind upon

which the scentometer readings were based, together with citizen

testimony as to the obnoxious odors.

 Witnesses testified as

follows:

George Marshall

(P.

 253) resides one—half block from Royal.

“Q

 And, what about the smell? can you characterize

it at all?

A

 No way you can describe it.

Q

 Well,

 can you describe whether it

 is pleasant or not?

A

 It’s unpleasant.

 It sticks right in your throat.

Make you sick at your stomach.

Q

 All right.

 And, how long have you lived at your

current address?

A

 We have been there,

 I think,

 about three years.

We

lived further down the street for around eleven years.

—

585

—4—

Q

 For how long have you been subjected to these odors?

A

 Ever since we have been out there.

Q

 For the last

A

 Fifteen years.”

James Murphy

(P.

 258) resides one-half block from Royal.

How long have you lived at your present location?

A

 Be two years this March.

Q

 And,

 have you detected this odor throughout that time?

A

 Yes,

 I have.

Q

 Are you able to have your dinner or your other meals

while that odor

is

A

 No sir,

 I cannot eat with that smell.”

Agnes Counts

(P.

 262)

 resides one-half block from Royal.

What can you tell us about odor emissions from the

Royal Packing Plant?

A

 Well,

 some days it’s nearly all day but most in the

evenings, oh say, from 5:00 on and it’s terrible.

Q

 Can you describe it? Can you characterize it?

A

 That’s hard to say.

 It’s the worse smell you have

ever had,

 I can tell you that.

Q

 Are you able to have your dinner?

A

 No.”

And even the Respondent’s witness admitted to the odors

(P.

 341).

The evidence indicates that the Respondent now has a proper

permit and that

 lie is proceeding with his control equipment,

the

cost of purchase and installation thereof aggregating $40,000

(P.

 338)

 either on or ahead of schedule.

 This we take as

mitigating evidence.

We

direct that the Respondent cease and

desist its odor emissions and make a progress report within the

next 60 days to the Agency.

 Because of the long standing

 violations

 as evidenced herein, we impose a penalty in the

amount of $3,000.

This opinion constitutes the findings of fact and conclusions

of law of the Board.

IT IS THE ORDER of the Pollution Control Board:

1.

 Penalty in the amount of $3,000 is assessed against Royal

Packing Company for violation of Rule 3-3.280 of the Rules and

Regulations Governing the Control

 of Air Pollution and Section 9(b)

of the Environmental Protection Act in failing to obtain

 a permit

for

the

installation of its equipment and for causing air pollu-

tion in violation of Section

 9(a)

 of the Act.

 Penalty payment

by

certified check or money order payable to the State of Illinois

shall be made to:

 Fiscal Services Division,

 Illinois ~Environmental

Protection Agency,

 2200 Churchill Road,

 Sprinqfield,. Illinois

62706.

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586

—5—

2.

 Within 60 days from the date of this order, Respondent

shall cease and desist the causing of odor emissions so as to

cause air pollution as defined in the Environmental Protection

Act and shall report its progress to the Environmental Protection

Agency.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, certify that the above Opinion and Order was adopted by

 the Board on the

IT~’

day of

~

 1973,

 by a vote

of~

 top.

7— 587