ORDER

ILLINOIS POLLUTION CONTROL BOARD

May 12,

1977

DEL

MONTE CORPORATION,

Petitioner,

)

 PCB 76—239

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

ATTORNEY

THOMAS

IMMEL,

BURDITT

CALKINS,

APPEARED

BEHALF

PETITIONER;

ATTORNEY WILLIAM

ERDMAN,

APPEARED

BEHALF

RESPONDENT.

OPINION

AND

 ORDER OF THE BOARD

(by

Mr. Goodman):

September

27,

1976,

the

Del

Monte

Corporation

(Del

Monte)

filed its Petition appealing the denial of an operating permit by

the Illinois Environmental Protection Agency

 (Agency)

 for Del

Monte’s facility known as Plant

 #115 in Rochelle, Illinois.

 Hearing

was held in

 this matter on January 26,

 1977.

Del Monte owns and operates

 a complex of facilities at Rochelle,

Illinois, one of which is Plant #115

 (Plant).

 The Plant is

 a can

manufacturing facility whose operation includes the application of

a liquid film of enamel to flat sheets of tin plate which are subse-

quently conveyed through baking ovens.

 The Plant utilizes five

different types of enamels, with a maximum of two enamels being used

at any one time due

 to the availability of two ovens.

 The Rochelle

Rose Company, engaged in the commercial production of roses,

is

directly adjacent to the Del Monte Plant.

Del Monte alleges that the Agency has arbitrarily and capri-

ciously denied Del Monte’s operating permit application by its permit

denial letter of August 27,

 1976.

 In its denial letter the Agency

stated that it had verified citizen complaints on file indicating

that the equipment under consideration caused an odor nuisance

beyond the Plant boundary of Del Monte, thus invoking Rule 205(f)

of

the Board’s Air Pollution Rules and Regulations.

 Rule 205(f)

 limits

25

—

447

2—

the emission

of

organic

 material to no more

than

8

pounds

per

hour

from any emission

source

 if an

odor nuisance exists.

 It is clear from

the

evidence

 that Del Monte cannot meet

the

 8 pounds per hour limit of

205(f)(R.38,

 Attachments

2--A

 through

6~-Aof

Petitioner’s

Exhibit

1).

There

 no allegation

 that. Del

Monte

uses

 photochemically reactive

material.

 The issue

is,

therefore,

whether

the

Agency

could

have

reasonably determined

that an

odor

nuisance

existed

the

 Del Monte

facility.

In determining

the question of whether

the Agency was correct

in

denying

the

operating

permit

application

of

Del Monte, the Board

 shall

consider only the

evidence bufore

the

Agency at the time the decision

was made,

Del

Monte contends that,

without

 an. adjudication that a

nuisance does Indeed

exist, the

Agency may not invoke the limitations

of Rule 205(f)as the

basis

 for denial of a permit application.

The

Board does not agree.

 Under

Section

 39 of the Act it

 is the duty of

the Agency to issue

a

permit

upon proof that such issuance will not

cause

 a violation

of the Act or

the Regulations.

 If the Agency can

reasonably

find

from

the facts before

it that a particular Rule applies

to the Petitioner,

 it must deny the

permit application if the appli,cant

cannot prove

compliance with that

Regulation.

If

the

applicability of

every Regulation

to an individual

source were

to

be adjudicated,

 total

paralysis of the

intent of the

Act and the

permit

requirements would

result.

Del

Monte

 further alleges

 that,

 indeed

 a nuisance does result

from

its

emissions,

 it would be what

 legally

termed

“private”

nuisance,

over which the Agency

and

the

Pollution

Control

Board

have

no jurisdiction.

 The Board is

charged with

 the regulation and abate-

ment of

pollution

 in the State

of Illinois.

If

 the Board utilizes

a

legal term of art

in

its

Regulations,

this

 use does not invoke the

legal

connotations

ascribed

 to such

 a term by the

case

law

the

State

of Illinois.

The

word

~~nuisance~u

 Rule

205(f)

 means what an ordinary

person considers

it

to mean,

and

nothing

more.

Before discussing

whether the

Agency properly determined that an

odor nuisance

existed,

 the Board

notes that much of the record herein

concerned

 a contention

by

Rochelle Rose that emissions from Del Monte

caused considerable

physical

damage to its product.

 A September,

1975 letter from

the IllinOis

Natural History Survey

indicated

 that

rose cane

specimens submitted by

Rocheile Rose were infected by

fungi

and were weakened.

 However,

 a subsequent investigation by the

Illinois

Department of Aqriculture

coupled with a hydrocarbon monitor-

ing project conducted

by the Agency in the City of

Rochelle resulted

in the conclusion

that Del

Monte could not be

 identified

 as the major

contributor to the

plant damage

sustained by Rochelle Rose.

25

—

488

—3—

As to the alleged odor nuisance which formed the basis of the

Agency’s denial, on June 23, 1975

 a report was submitted concerning

the complaint of Rochelle Rose against Del Monte with regard to odors

and damage to the rose crop from Del Monte’s emissions.

 This report

recommended

that

warning

letter

be

issued indicating the noncompli-

ance status of the equipment in Del Monte’s facility

 (Agency Record

356).

 In November,

 1975,

 fifteen employees of the Rochelle Rose

Company signed a complaint concerning the alleged odor

 (Agency Record

254).

Del Monte has been using modified solvents and enamels since

May

1976

(Agency

Record

 12).

 On May 17,

 1976,

 the Agency calculated

that the new solvents had caused a reduction in potential odor emis-

sions by a factor of

9.

 This calculation was based upon the solvent

composition of the old paints and their pound per hour usage compared

 to the new paints which replaced them (Agency Record

 48).

 On July 16,

1976,

another

report

the

Agency

indicated

only

 two of the old coat-

ings were being used in 1976 and that the solvents for them had been

changed.

 The report then purports

 to compare those two coatings,

completely ignoring the quantities used,

 and reaches the conclusion,

that the 1976

solvent

 may be more odorous than the 1974

 solvents.

The

first report used known usages and merely substituted the new paints

for the old paints.

 The second report ignores most of this data and

merely compares the odorous properties of the solvents of two of the

new coatings, totally disregarding amounts.

 The Agency contends that

the second report is

 a “correction”

 of the first report.

 The Board

cannot accept this “correction”.

 The first report was done in an

orderly manner using data requested from Del Monte by the Agency.

There is no reason to believe that the results of the report of May

17,

1976 are not correct, and certainly the sketchy report of July

16,

1976

does absolutely nothing to refute the former report.

On August

3,

 1976 the Agency interviewed the Rochelle Rose

employee complainants.

 Although these complainaints are referred to

by the Agency as citizens, the more narrow classification of Rochelle

Rose employees

 is appropriate.

 The record contains summaries of the

interviews with the Rochelle Rose employees.

 A total

of

 27 people

were interviewed,

 24 of which stated that they were bothered by the

emissions.

 The complainants generally stated that, while at work,

 they

became sick, nauseated and sustained headaches from breathing the odors

and

emissions

from

the

Del

Monte

Company.

None

had

ever

registered

prior complaint,

 although some said they had been suffering for many

years.

 All insisted that they had been affected by the emissions in

the last three

 months,

 apparently attempting to prove that the new

type solvents did not correct the alleged problem, and most insisted

that they had not been approached by the owners of Rochelle Rose to

give any testimony.

25

—

449

odor

the

DelY~~

empl

Rose

~r

~e

opln o

~er~ rr

Monte

e

 ~e o~irti

Record

c

 only

Del M r’~e~ ~r

ownere

I R

~-4

J we

v~eycorducted January

14, 1976,

the

zens

 in residences located

east of the

xj

eb ut two city blocks

away.

 The wind

rr

 ~hese residences.

The

report

sck~io~ledgedthe presence of

odors from

~fred

 however, turned

out to be the

 of sweet corn

 in the

summer.

 None of

idicated any problems

with odors from

~ erds that none of the

Rochelle

Rose

 fluenced by their

position

with

Rochelle

f A bus

 Rose.

 On the

other hand,

 it is the

 f the citizens who

testified that they

 emissions were either

friends of Del

dated

some

 manner by Del

Monte

 (Agency

r

 ints the Agency has ever

recorded against

 ones noted from the

employees and the

te~

r

r.

as

vest4 gatlo

ac’~o ~

area,

ii

t~lv

c

r

thrt

U

th~

ever bser

I

Corn

arj

abe

recol

buf

~t

~

tost

 t ~e

resscr~ttv

cons

 a u c

Si

t

I

a-

‘~(

M’~

 rt~.

L c jnformation supplied to

the Agency from

~

 Rose Company and the citizens

in the area,

a

 il ~ty should have resulted

in further in—

e

 ‘~-Jproblem.

 Certainly the weight

to be

~

e ~

 coziplaints from workers

industrial

a

~s

 of a single company

which

 had admit—

 tb Del Monte, must be tempered

by the fact

le

 o elicit a complaint from

anyone else

in

n adoition, the fact that no

complaints

had

Del Monte except those by

Rochelle Rose

 have led the Agency to further

 investigate

)

?a.

bat

IDtC

 scientific manner.

Based

upon

the

ac

 Enard cannot find that Del Monte’s

 emissions

s

 edor nuisance.

 The Board does

find, however,

(

 r?’~Cr

 corbui ed in the Agency record could not have

y

t

 tha conclusion that Del

Monte’s emissions

tx~ar~eundcr Rule 205(f)

 of the

 Regulations.

 have reasonably found that

an odor nuisance

bul

.lo.to

was

 in compliance

with

Rule

205(f)

‘~c

 to non photochemically

 reactive

solvents in

he decision of the

Agency

denying

Del

 n is hereby reversed.

I~i-

 ‘e remains to be resolved.

Del

Monte has

 ?~r~

 aaplcation,

 the record on

appeal filed by

r -a

r

a

a

 r±A ency,

 and the Exhibits

produced at the

 der~rally by the Pollution

Control Board in

~/(~)

Chapter

 Procedural Rules

 of the

c

C

3

 B ard

 (Procedural Rules)

and

Section

7.1

P

 tncti

Act

 (Act).

 Although only

certain parts

ti-

hea

ac

 awc~

him

11

of

tn~’r

n

—5—

of the material requested warrant such confidentially due to reference

to proprietary information,

 the Board can find no prejudice to anyone

if the request

is

 granted.

 The Board shall therefore order the Peti-

tion herein,

 the record on appeal filed by the Environmental Protection

Agency,

 and the Exhibits produced at the hearing to he marked “Not

Subject to Disclosures’

 and held by the Clerk of the Board under Rule

107(c)

 of the Board’s Procedural Rules.

This Opinion constitutes the findings of facts and conclusions

of law of the Board

in

this matter.

ORDER

It

 is the Order of the Pollution Control Board that the Illinois

Environmental Protection Agency’s action of August

27,

 1976, denying

Del Monte Corporation’s operating permit application,

 is reversed and

that the Illinois Environmental

Protection Agency issue a permit

pursuant to said application.

I,

 Christan L.

 Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Opinion and Order were adopted on the

__________day of

(.~

 1977 by a vote of

~

~stanL.off’22~

Illinois Pollution

 ntrol Board

25

—

451