ILLINOIS
POLLUTION
CONTROL
BOARD
November 14, 1972
ENVIRONMENTAL
PROTECTION
AGENCY
)
)
V.
)
#71—348
)
DARLING
&
CO.
)
DARLING
&
CO.
)
V.
)
#72—73
)
ENVIRONMENTAL
PROTECTION
AGENCY
)
Mr. Nicholas G. Dozoryst II, Special Assistant Attorney
General, for the Environmental Protection Agency
Mr. Joseph 3. LaRocco, for Darling & Co.
Preliminary
Opinion
& Order of the Board
(by Mr. Currie):
On
November
3, 1971,
just over a year ago,
the Agency
filed a complaint (*71—348) against Darling, alleging that
odors from its rendering plant on Chicago’s South side
caused air pollution in violation of
*
9(a) of the Environ-
mental Protection Act and that no compliance program had
been filed as required by Rules 2-2.31 P and 2-2.41 of the
Air Pollution Control Board.
Darling responded by filing
a variance petition (472-73) seeking approval of
a 27-month
program for construction of a new plant, upon completion
of which the old plant would be closed and the emissions
objected to would be terminated.
The cases were consolidated.
After considerable delays, some of which may have been
attributable to our lack of funds
for hearings during the
early months of 1972,
a hearing was held July 26,
1972.
At that time,
five months after the filing of the variance
petition, the Agency had not filed the reconuendation it was
required to file within
21. days
(PCB Regs., Ch.
1, Rule
403).
The Assistant Attorney General reported at the hear-
ing that he had received a “draft” reconinendation but that
he had not filed it because “there are some difficulties
with that recommendation”
CR.
4).
Its a result, the company
was left in the dark as the Agency’s position, which
is
hardly fair,
and so are we, which is hardly conducive to
an informed decision.
6
—
—2—
The company presented evidence in support
of
its petition,
and
the Assistant Attorney General conducted cross—ex-
amination.
No evidence was adduced on behalf
of
the
Agency.
The Assistant Attorney General informed
the
Hearing Officer that he
“had not been.
.
.
informed” that
the Agency wished
to present witnesses
and requested that
any agency witnesses come forward.
None did.
(R.
137—38)
The complaint against Darling was
“held
in abeyance”
because
the State had nothing
to offer,
leaving
a date
for hearing on the complaint
to be set by “agreement by
the parties’
(H.
4,
133).
The transcript
of this July proceeding we received
without explanation
in November.
No further hearing has
been held
or even scheduled.
We find
this entire proceeding
quite incredible.
The lack
of communication between
the Assistant Attorney
General and his client
is
to say the least remarkable.
We doubt that
it
is customary
for an attorney
to publicly
request his client
to come forth with evidence,
or
for
him to prevent the client’s
filing papers that are re-
quired
by regulation
on
the ground
that he disagrees with
their content.
Cf.
International
Harvester Corp.
v.
EPA,
#72—321,
5 PCB
(Oct.
24,
1972).
We see no in-
dication
of any intention
to prosecute,
no explanation
of
the
failure
to do
so when
a hearing was finally scheduled
after long delays.
Another
three months have passed
since
the hearing with no effort
to bring
the complaint
to hearing.
We shall give the State forty more
days
in
which
to bring the case to hearing,
failing which the
complaint will be dismissed
for want of prosecution.
As
for
the
variance
request,
we are
concerned
by
the
company’s
apparent
misconception
of
the
function
of
a
variance.
The
company
states
that
its
compliance
program
will
commence
upon
grant
of
a
variance
(E.g.
,
H.
47)
because
we
can’ t
sian
a
contract
for
a
plant
that
we
don’ t
know
that
we
will
be
allowed
to
undertake.”
This
confuses
a variance with
a permit.
The company
is clear that
the
new plant will comply with
the
law
(H.
42)
;
all
it needs
to build
it is
a permit from
the Agency.
The sole pur-
pose
of the variance
is to afford
a shield against prose-
cution
for violations
at the old plant while
the new
is
being constructed.
The thing
for
a company
to do
in such
a situation
is
to get its permit and start building
immediately while seeking,
if
it wishes,
a variance
for
continued operation
in
the meantime.
See A.
H.
Staley
Mfg.
Co.
v.
EPA,
#71—174,
2
PCB
521
(Sept.
30,
1972)
We
have
held
repeatedly
that
nobody
needs
a
variance
to
stop
violating
the
law
or
to
build
a
plant
that will
comply.
Citizens Utilities
Co.
v.
EPA,
#71—125,
2 PCB
6
—
208
—3—
(Aug.
13,
1971)
;
U.S.
Industrial Chemicals Co.
v.
EPA,
#71—44,
2 PCB 591,
599
(Oct.
14,
1971); Richardson Co.
V.
EPA,
#72—41,
4 PCB
(May
3,
1972)
;
Metropolitan
Sanitary Dist,
v.
EPA,
#72—110,
4 PCB 561,
562
(May 23,
1972; Metropolitan Sanitary Dist.
v.
EPA,
#72—111,
4 PCB
737,
741
(June
29,
1972)
.
Construction of whatever is
necessary to comply should proceed with all practicable
haste upon obtaining
a permit.
We urge the Agency to
make this point completely clear
to petitioners in the
future so that valuable time
is not lost after filing of
a petition.
The quite separate question of
a variance to shield
against possible enforcement as to the old plant depends
upon a showing that
the legitimate hardships of immediate
compliance substantially outweigh the benefits to the
community.
EPA v. Lindgren Foundry Co.,
#70-1,
1 PCB 11
(Sept.
25,
1970)
.
We cannot so hold in the absence of
proof both
that the pollution caused by the operations
in
question is tolerable and that the failure to correct
the problem earlier was justifiable.
See our recent
opinion in International Harvester Corp.
v. EPA,
#72-321,
5 PCB
(Oct.
24,
1972)
,
which discusses these questions
in some detail.
There is inadequate proof in the present
record on either score.
We know virtually nothing about
present emissions or their effect;’
no citizens testified
as to the effect of Darling’s operations on the neighbor-
hood air; and no evidence was presented to indicate
why
construction of the new plant did not start some time
ago.
Indeed
we
do not know enough about present emissions
to determine whether or not a variance is even necessary.
As
in the International Harvester cited above,
in the interest of time we shall allow Darling to present
further evidence in the coming hearing on the Agency’s
complaint in support of its petition.
These cases are hereby remanded to the Hearing Officer
for expeditious proceedings in accordance with this opinion.
1.
It is alleged that improvements completed in 1966
have reduced complaints
“to a very low level of
incidence”
(petition,
p.
5)
.
The testimony contains
the rather bare conclusion that the complaint experience
indicates a satisfactory odor situation
(R.
34)
I, Christan Moffett, Clerk of the Pollution Control Board,
certify that the Board adopted the above Preliminary Opinion
& Order this
j’.j4~
day of(
~
1972, by a vote
of
.
6
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209