ILLINOIS POLLUTION CONTROL BOARD
    October 10, 1974
    PERI FOODS COMPANY, INC.
    Petitioner,
    vs.
    )
    )
    PCB 74-248
    ENVI RONMENTAL PROTECTION AGENCY,
    Respondent.
    Mr. Patrick J. Phillips, Attorney, on behalf of Petitioner;
    Mr. Peter E. Orlinsky, Attorney, on behalf of the Environmental
    Protection Agency.
    OPINION AND ORDER OF THE BOARD (by Mr. Seaman):
    The Perk Foods Company, Inc. (hereinafter Petitioner), filed
    a Petition for Variance with the Environmental Protection Agency
    (hereinafter Agency) on July 1, 1974. A public hearing was held
    on September 12, 1974.
    Petitioner operates a facility in Chicago which manufactures
    wet canned dog food, dry bagged dog food, and metal cans. Pe-
    titioner’s operations include four mixer cookers, two extruders,
    and a drying oven.
    Petitioner is seeking a one year variance from Section 9(a)
    of the Environmental Protection Act as it applies to malodorous
    emissions from its facility.
    On or about January 17, 1974, Petitioner filed a Petition
    for Variance with the Board seeking a variance from Rule 203(a)
    of the Air Pollution Control Regulations and Section 9(a) of
    the Environmental Protection Act. Said Petition was subsequently
    amended three times.
    On May 23, 1974, in PCB 74-8, the Board granted Petitioner
    a variance from Rule 203(a) until December 31, 1974: but denied
    without prejudice Petitioner’s request for a variance from Section
    9(a).
    14
    —
    131
    —2—
    In its current Petition for Variance, Petitioner alleges in its
    “statement of hardship” that denial of its variance request would
    cause the shutdown of its mixing-cooker operation thereby eliminating
    160 jobs.
    The Agency correctly states that it is established Board policy
    that the deniari, of a variance is not tantamount to the shutting down
    of a facility; rather, it is merely a refusal to grant a shield from
    prosectuion. Norfolk and Western Railway Company v. EPA, PCB 70-41;
    GAF Corporation v. EPA, PCB 71—li; Mt. Carmel Public Utility Company
    v. EPA, PCB 71—15, Flintkote Company v. EPA, PCB 71-68; ABC Great
    States, Inc. v. EPA, PCB 72-39; Forty-Eight Insulations, Inc. v. EPA,
    PCB 73-478; Amerock Corporation v. EPA, PCB 74-13.
    However, as an allegation, not rebutted or denied, we must consider
    it with the case.
    Petitioner plans to eliminate its odor problem by ducting the
    exhaust gases from the mixer-cookers and blending room through a wet
    scrubber. The cost of the control equipment is estimated by Petitioner
    to be $33,600.00 (See Petitioner’s Exhibit 8-A). Petitioner plans
    to have the scrubber fully operational by June 18, 1975.
    The Agency is of the opinion that the proposed control system
    will most likely abate the odor problem. The Agency further believes
    that the time schedule suggested by Petitioner is not unreasonable.
    The Agency notes, however, that Section 9(a) of the Environmental
    Protection Act has been~in effect since July 1, 1970, and that Petitioner
    has been in violation since that date.
    The Agency is strongly in favor of Petitioner’s current efforts
    to comply with standards. However, the Agency believes that the major
    reason Petitioner cannot comply with applicable standards is due to
    his own past delay, and therefore recommends denial.
    On the question of Agency’s Exhibits referred to in the Record
    (R. 41) and not offered into evidence by the Agency, we do not concur
    with the Hearing Officer in his ruling denying the Petitioner’s Motion
    To Strike. Testimony was elicited from an Agency witness (R. 41)
    referring to Exhibits A thru G concerning citizen complaints. Subsequently,
    the Agency refused to move for their admission into the record as
    Exhibits. We hold that testimony be stricken and held for naught; it
    is hearsay in its most objectionable form. Board Rule 321 cited by
    Agency is inapplicable.
    This rule is intended to relax the formal and strict rules of
    evidence but not to allow testimony which is objectionable. The Agency
    never made the question of citizen complaints an issue in the case.
    The Agency attached to its “Recommendation” copies of these “citizen
    complaints.’ This represents a blatant attempt to inflame the Board.
    14
    —
    132
    -3-
    The Board is now and always will be responsivle to citizen testimony
    when properly presented.
    We are not dealing here with legally unrepresented parties
    -
    both are more than adequately represented. We cannot deny the
    opportunity for cross-examination or any other Constitutional
    safeguards. And so what record do we have before us? The testimony
    of an Agency inspector who testified that he inspected the petitioner’s
    premises and “had perceived some odors which I felt were objectionable
    to me.” All of the rest of his testimony has been stricken.
    The only citizen testimony was from a husband and wife living
    in the area who objected to the strong odors but who also testified
    that “if they are doing something about it, and they are doing it as
    fast as they can, I think that is about all we can ask.” They further
    testified that they did not object to the granting of a variance.
    On the other hand, the Petitioner has presented evidence of a
    compliance program, acceptable to the Agency. The affects of the
    public in the area have been shown to be minimal by the Agency’s own
    witnesses. The economy of today together with the high unemployment
    rate do not allow us to speculate on the unemployment of the 160
    employees of the Petitioner.
    From the Record presented to us together with the Agency’s favorable
    position to Petitioner’s control program, we will grant the variance
    for one year commencing on July 15, 1974 with certain conditions as
    recommended by the Agency.
    This Opinion constitutes the findings of fact and conclusions of
    law of the Board.
    IT IS THE ORDER of the Pollution Control Board that:
    1. Petitioner be granted a variance from Section 9(a) of the
    Environmental Protection Act for one year commencing on July 15, 1974
    subject to the following conditions:
    a. That the compliance program of the Petitioner as submitted
    and approved by the Agency be adhered to in all its details.
    b. Within 30 days of the Board’s Order herein, Petitioner
    shall post a performance bond for $33,000.00 in a form satisfactory
    to the Agency. The purpose of said bond is to assure completion of
    the compliance program. The bond shall be sent to:
    Environmental Protection Agency
    Fiscal Services
    2200 Churchill Road
    Springfield, Illinois 62706
    14
    — 133
    -4-
    c. Coninencing 30 days after the Board’s Order herein, and
    continuing monthly thereafter, Petitioner shall submit
    reports to the Agency detailing all progress made toward
    compliance with Section 9(a). Said reports shall be sent
    to:
    Environmental Protection Agency
    Division of Air Pollution Control
    Control Program Coordinator
    2200 Churchill Road
    Springfield, IllInois 62706
    d. Petitioner shall apply for all necessary pennits from the
    Agency.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board, certify that the abov Opinion and Order was adopted on this
    ________________
    day
    of
    ~cy~
    ,
    1974 by a vote of
    14—134

    Back to top