ILLINOIS POLLUTION CONTROL BOARD
    April 10, 1975
    DARLING & COMPANY,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 75—18
    )
    ENVIRONMENTAL PROTECTION
    )
    AGENCY
    )
    )
    Respondent.
    )
    Mr. Joseph J. LaRocco, appeared for Petitioner;
    Mr.. James K. Jenks, Assistant Attorney General, appeared for Respondent.
    OPINION AND ORDER OF THE BOARD (by Mr. Zeitlin)
    Petitioner, Darling & Co., (Darling), requests an extension of a
    variance from Sec. 9(a) of the Environmental Protection Act (Act),
    previously granted by the Pollution Control Board (Board) on March 14,
    1974. The Petition seeks an extension of that variance from January 31,
    1975 to December 31,
    1975.
    The prior case originated on November 3, 1971, when the Environ-
    mental Protection Agency (Agency),• charged Darling with violations of
    Sec. 9(a) of the Environmental Protection Act and Rules 2—2.31 (f) and
    2—2.41 of the Rules and Regulations, of the Air Pollution Control Board
    for its glue—making facility at 42nd St. and Ashland Ave., in Chicago
    (PCB 71—348). On February 25, 1972 Darling filed a Petition for Variance
    in response to the aforementioned action. The Variance was requested
    from Sec. 9(a) of the Act, until January 31, 1975, a period of 27
    months (PCB 72—73).
    Darling requested the variance in PCR 72—73 so that it could continue
    to operate its glue plant at 42nd St. and Ashland Ave. until it completes
    construction of a new and modern plant at its 45th St. facilities. The
    42nd St. plant has been in operation since 1882 and probably could not
    be brought into compliance with the Act. The glue plant employs about
    100 people directly with an additional 139 support employees (PCB 72—73,
    p. 9).
    Those two cases, PCB 71—348 and PCB 72—73, were consolidated by the
    Board, and an Order was issued March 14, 1974 which, in part, granted
    Darling a Variance from Sec. 9(a) of the Act until January 31, 1975.
    Darling was to have completed the construction of its new glue plant by
    that time. That Variance was granted subject to several conditions,
    including the submission of various reports and compliance plans to the
    Agency.
    16—
    391
    —2--
    This Petition for Variance, to December 31, 1975, alleges that
    since the entry of the Order in PCB 71—348 and PCB 72—73, Darling has
    made a diligent effort to complete the construction of its new glue
    plant at 1245 W. 45th St., Chicago, Illinois. But due to numerous
    delays in securing the new equipment, and problems encountered in securing
    the necessary engineering consultant services, the Petitioner cannot
    complete the new plant by January 31, 1975.
    Petitioner further alleges that based on present commitments which
    it has obtained from the manufacturers and fabricators of machinery it
    has ordered, and based on the work schedule of the construction company
    engaged to complete the building after the installation of the equipment,
    it will require an additional eleven (11) months, or until December 31,
    1975, to complete the new facility (Pet. 1 & 2).
    A hearing was held on February 28, 1975, at which testimony was
    given by Clark B. Rose, Vice—President of Darling, Thomas F. Mitchell,
    Director of Research and Chief Chemist of Darling, Herbert W. Wojcik,
    General Superintendent of Darling, and Laxi N. Kesari, Environmenal
    Protection Engineer with the Agency’s Division of Air Pollution Control.
    Petitioner submitted a nwnber of photographs, both with its petition
    and during the hearing, showing equipment at the new plant, a good deal
    of it already installed. Mr. Rose testified that $3.5 million had al-
    ready been expended on construction of the new plant, and that the final
    cost will approach $5 million (1. 13).
    Mr. Mitchell detailed Petitioner’s improved housekeeping, equipment
    maintenance, and elimination of certain processes which wer.e the cause
    of odors at the old plant (R. 24—29), Darling’s success in the suppression
    of odors at the old plant, during the period of the prior variance, was
    confirmed by Mr. Kesari, of the Agency, who testified that he contacted
    various people in the area, and all agreed that the improvement was
    great (R. 52—55). He was not certain however, that all persons in the
    area, including those who had not been contacted, might not still find
    odors objectionable. J3ut this is problematical; there were no citizen
    complaints for at least a year previous to the hearing (R. 57).
    Mr. Wojcik went into some detail on the nature of the delays ex—
    perienced in completing the new glue plant at 45th Street. These included
    delays in equipment delivery, engineering errors, (R. 47), steel delivery
    delays, (Pet. Report to Agency, p. 3), and changing engineering consultants,
    (Pet. Report to Agency, p. 12 & 13). It seems clear from the record
    that Petitioner has proceeded in good faith, and that the construction
    and equipment installation delays experienced thus far cannot be blamed
    on Darling.
    The Agency has challenged the proposed completion dates, both for
    the conclusion of contract work and the shakedown period necessary for
    normal operation of the new plant. The Agency offered little evidence
    to support Its position, however, and failed to overcome the weight of
    evidence presented by Darling.
    16—392
    —3—
    At the February 28, 1975, hearing, the Agency also raised a new
    ground for its objection to a grant of variance in this case. In its
    closing argument, the Agency in effect stated that the evidence presented
    at the hearing showed compliance with Sec. 9(a) -for th~old Darling plant.
    The Agency noted the “great steps” made by Petitioner in reducing the
    odor problem at the old plant, and stated that the progress was in fact
    so great that a variance is simply not necessary (R. 61).
    Had the Agency further pursued this tick with evidence at the
    hearing, the Board might have been disposed to consider that argument
    more thoroughly. But the Agency here is relying on the presentation
    made by Petitioner regarding good faith attempts to abate an existing
    problem at the old plant. That presentation, while undoubtedly demonstrating
    such good faith and considerable progress toward compliance, is insufficient
    to show that Darling is no longer in need of a Variance. The Agency’s
    witness stated that the citizens contacted no longer complained of
    “strong” odors, and his further testimony is by way of comparison with
    the considerable problem which previously existed (R. 53). There has
    been no demonstration of a complete abatement, only a comparative one.
    It should be noted, though, that Petitioner was delinquent in
    reporting to the Agency under the terms of the previous Variance. To
    excuse this failure, Petitioner noted that the subjects of the required
    reports had not changed materially during several reporting periods, and
    that it felt there was no need to produce duplicative paperwork.
    Darling stated that it would be willing to make all reports required
    under an extension of the variance. Petitioner is warned that such
    reporting conditions are part of the Variance and failure to fulfill all
    the terms endangers the continuance of the variance; Petitioner is not to
    conclude unilaterally that the conditions to a Vartance are meaningless
    or unnecessary.
    We are granting Petitioner’s request for a variance for the following
    reasons:
    1. Petitioner has submitted and followed a strong program for
    abatement (closing of old plant and building a new plant at a cost of
    approximately $5,000,000).
    2. Petitioner has, through a strong maintenance program and aban-
    donment of certaIn processes, already achieved major abatement objectives
    at the old plant.
    This Opinion constitutes the findings of fact and conclusions of
    law of the Board in this matter.
    16—393
    —4—
    ORDER
    IT IS THE ORDER of the Pollution Control Board that Darling and Co.
    is granted a variance from Sec. 9(a) of the Environmental Protection Act
    for its 42nd Street plant from January 31, 1975 until December 31, 1975,
    subject to the following conditions.
    a) The present compliance program at its glue plant located
    at 4201 S. Ashland Ave., Chicago, Ill., detailed in the letter from
    Darling to the Agency and dated February 24, 1975, shall be stringently
    continued; Darling & Co. shall submit monthly reports to the Agency
    reporting on the compliance program.
    b) Darling & Co. shall diligently pursue its construction
    program of completing its new glue plant at 45th St. and carry out
    the shakedown operation with all due speed; Darling & Co. shall
    submit quarterly reports to the Agency starting 30 days from the
    issuance of this Order, which detail the progress of the construction
    as specified in the compliance plan previously submitted.
    c) Petitioner shall within 30 days from the date of this
    Order modify the previously posted performance bond to guarantee
    compliance with this Order and to conform to the new time period.
    Mr. Henss Dissents.
    I, Christan L. Moffett, Clerk of the Illinois Pollution Control
    Board hereby certify that the above Opinion & Order were adopted on the
    ___________day of
    I~~I.L
    ,
    1975 by a vote of ~to
    Christan L. Moffett erk
    Illinois Pollution ontrol Board
    16 —394

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