However., we do not mean to minimize the importance
In the instant cause, it appears that, although

ILLINOIS POLLUTION CONTROL BOARD

March 7, 1974

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

vs.

PCB 73—193

FLEISCHMANN MALTING COMPANY,

Respondent.

Kenneth J. Gumbiner, Assistant Attorney General, on behalf

of the Environmental Protection Agency;

Thomas J. Regan, Attorney, on behalf of Respondent.

OPINION AND ORDER OF THE BOARD (by Mr. Seaman):

On May 4, 1973, the Environmental Protection Agency

filed Complaint against Fleischmann Malting Company, charging

therein continuing violation of Section 9(a) of the Environ-

mental Protection Act, Ill. Rev. Stat., Ch. 1ll—l/2,~l009(a)

(1971). A public hearing was held in this matter on September

4, 1973.

Respondent is the owner and operator of a grain

storage and processing facility located at 2143 West 51st Place,

Chicago, County of Cook, Illinois. Complainant alleges that

beginning on or about July 1, 1970, and continuing every day

of operation to the filing of Complaint, Respondent has caused

or allowed the discharge of gaseous organic emissions of such

characteristics and duration as to cause injury to the health

of persons living in the vicinity or to unreasonably interfere

with the enjoyment of life or property of such persons, in

violation of Section 9(a) of the Act.

On June 14, 1973, the Hearing Officer in this cause

ordered Complainant to furnish Respondent with a list of

witnesses expected to be called. Of this list, Complaintant’s

attorney stated as follows:

“Well,

it is absolutely true we did

not provide a list of witnesses, but I

orally advised Mr. Regan, and we weren’t

sure because of the time being taken up

by him procuring an expert, who would be

available to testify.”

11

—

443

—2—

“Any 

time you have a number of citizen

witnesses who have their 

own

jobs 

and

so

on to attend to 

and

their own businesses

to run, you cannot be sure on a particular

date, or ever, 

if they will

be able to

appear. 

And Mr. Regan 

never advised me

it was necessary that he 

jiave 

that list

subsequent to the request

which 

was filed

way back in 

June.

It is

now

September,

although we talked 

about it

many

times.”

CR. 5).

Respondent submits that it 

was error to allow any

of Complainant’s witnesses to testify at the hearing 

and

that their testimony should not be considered by this Board.

Rule 313(b) Ci) provides that the Hearing Of ficer

shall order the production of a list of witnesses who 

may

be

called at a hearing upon written request by any party. There

is no question that Complainant should have complied with

the Hearing Officer’s order. It is for us to decide whether

Ccmplainant’s failure to produce the list of witnesses resulted

in such prejudice to Respondent that the testimony of Com-

plainant’s witnesses at the hearing should not be considered

in our 

deliberation.

We observe, initially, that the effects of failure

to

comply 

with Rule 313(b) Ci) must always be considered on

a case by case basis. It cannot be seriously contended that

the mere violation of Rule 313(b) (i), without

more, 

constitutes

a fatal error in every circumstance.

Such a rule would be

tantamount to automatic dismissal for violation per se and

such severe application would not be warranted in every case.

However., we do not mean to minimize the importance

of the subject rule as a discovery device intended to insure

a fair opportunity to prepare for hearing and to avoid surprise

at the hearing. Certainly there

are

circumstances

under

which

non-compliance with Rule 313(b)

Ci)

would result in

such

extreme

prejudice that the Board would be warranted in striking

testimony.

In the instant cause, it appears that, although

Complainant was remiss in failing to tender the list of

witnesses before hearing, its failure was due to confusion

and

inadvertence, as will J~ seen below. Respondent’s position

at hearing was that Complainant should proceed with its

case-in-thief but should not be permitted to adduce testimony

relevant to the allegations of the Complaint. Respondent was

unresponsive to offers of continuance.

—3—

During direct examination of Complainant’s

first witness, Howard 0. Chinn, Respondent again objected

as follows:

“MR. REGAN: I will renew the objection

at this point as to his failure to supply

the list of witnesses. To the extent Mr.

Chinn is now directing any testimony toward

this complaint or what it purports to charge,

or any testimony relative to Fleischmann

Malting Company, we renew our objection as

to the witness.

HEARING OFFICER HORNE: Let the record

so state.

MR. GUMBINER: Let the record also state

that if Mr. Regan feels after today that he

would like a day to review the statements of

Mr. Chinn or to take his deposition, that we

would be glad to provide him with time to do

so, and recall r4r.Chinn at a later date.

MR. REGAN: I understand the hearing

has been convened. This is an adversary pro-

ceeding and we are a~issue, as I understand

the practice.

MR. GUMBINER: If Mr. Regan wishes to

withhold his cross examination until he has

taken a deposition, if he feels that it would

prejudice his case not to do so, again I make

the same offer.

MR. REGAN: I have no comment.

HEARING OFFICER HORNE: Okay.” (R. 14,15)

At the close of direct examination of Mr. Chinn,

the following, transpired:

“MR. GUMBINER: I have no further questions

of Mr. Chinn. But I would, for the record,

since I just recalled it with respect to Mr.

Regan’s objection to the list of witnesses, I

recall when I supplied him with the rather ex-

tensive copies of documents that I had in my

possession, that all the witnesses who are

going to be here today were listed on those docu-

ments.

11

—

445

MR. REGAN: 

I object to

Mr. Gurnbiner’s

recall, and again renew the objection that

there is an order here on 

the

State to

furnish a list of witnesses, which has not

been done.

HEARING

OFFICER HORNE: Let the record

so show.

MR. GUMBINER: Since the order did not

say written list of witnesses, I did orally

advise Mr. 

Regan that the names of the

wit-

nesses would he on that list, that I could

not specifically tell him to limit the 

list,

but that he 

could

depose any of 

the

names on

the list if he so chose.

MR. REGAN: Well, the legal argument now,

Mr. Gumbiner, is now settling the case down

to one of a cvc~~cv 

~ist o~~itnesses

I airect

‘ils ~te~:~    

a Lccv s 

atcvn—

tion to the Civil Practice Act of Illinois,

There are definite cvid. rules for c ~nducting

civil proceedincxs and t rials,

The iist of

witnesses is a written document, and 

if he

misunderstands that order, I am sorry for that.

We do not

have a list ci witnesses, nor have

I ever been furnished the name of Mr~Chinn

as a proposed witness in. this case, no way, no

how. But I will get on with the cioss exami-

nation of him now that he is here and! we are

at issue.

MR~

GUMBINER: May I continue, Mr~ 

Home?

HEARING

OFFICER !iORNE: Yes. Please 

do.

MR. GUMBINER:

I would just noint 

out that

the rule that

applies in this case is 

the Po-

llution Control

Board Procedural Rules, 

and

not the

C~v~ racthre 

Rui

Ru

entitled

“Discovery,~

says the heaninc officer 

may, upon

written request of any narry~ re~u±rea list 

witnesses

who may be called at the 

hearing be

produced.

It says nothing about a written list.

MR. REGAN: Well, we submit that the counsel’s

understandingof the way the order is complied

with, apparently this isn’t a foiim to rectify

that m~suncvrst~rdcv cv       

cvw, and

I take it the cvtcv          

I t~me

—5—

for cross examination.

HEARING OFFICER HORNE: Right.

MR. GUMBINER: That is might.” (R. 24,25,26).

At the close of Complainant’s case—in—chief, the

following transpired:

“MR.

GUMBINER: We are on the record now,

and I would like to make the statetement that

throughout the proceedings preliminary to

this hearing today, discussions have been had

with Mr. Regan at a pre-trial conference and

elsewhere, whereat it was considered whether

or not the State should delay its case in

order to allow Fleischmann Malting time to

get an expert. That, of course, appeared

to be 

a good idea

to the State, until it was

informed that it would take some months to

find an expert and then some more months to

determine—-for a determination by that expert

what would happen.

On Friday I received a hand-delivered letter

from Mr. Regan about 5:30 in the afternoon.

It may have been

delivered earlier, but that

is when I received it. It was a carbon copy

of a 

letter

by

Professor First, and just in

general it outlined a rather extensive program

for determining the existence and cause of a

particular odor problem at 

Fleischmann

Malting.

At that time I made the determination that it

would 

in the State’s--to the State’s benefit

to allow that expert time to make a preliminary

study. I was not able to contact Mr. Regan due

t.o the

lateness of the hour and the Labor Day

weekend, and I figured it would be better, and

I assumed it would be acceptable to Mr. Reqan, to

delay this hearing until his expert had time to

make that preliminary determination and possibly

avoid protracted litigation in this case.

At this point I had three witnesses-—actually

there were four witnesses planning to testify

but one woman was unable to make it today. There

are other witnesses whom I advised not to come

today because I assumed that we would be giving

Mr. Regan the time he has been asking for up

until now,

So, for the record! I would like to make that offer

447

—6—

Mr. Regan to adjourn for some reasonable

period based upon that expert’s statements

as to determing the cause of the problem,

if there is one, at Fleischmann Maltinq. In

the event that is not the case, I would need

at least several days

to recontact these

witnesses and reschedule them.

If Mr. Regan

has people that are ~ere 

today and would not

be available some other time, I suggest Mr.

Regan put those witnesses on now and I would

have no objection to interrupting my case to

do that.

MR. REGAN: The position of Fleischmann

Malting is that we are 

here today in response

to a notice from yourself, Mr. Home, setting

the hearing,

and. 

noting through the summer

months that a delay in the matter was apparently

Working a prejudice o~ some kind.

Accordinqly,

we are here today in response to a

hearing.

Ifthe State’s--I don’t know what

the

State is

doing.

I uflderstand this to be an adversary

proceeding. There 

are penal sanctions to

the

Environmental Protection Act. This Board has the

authority to levy a fine and to issue the

highest of chancery edicts, a cease and desist

order.

I view this as an adversary proceeding and I

have come prepared! with my people today. I don’t

need gratuitous offers from the State that they

are going to continue it.” (R. 60,61,62).

Finally, Respondent’s attorney stated as follows:

“MR. REGAN: Well, this gets too lawyer-like.

If the State is resting, I have to rethink my

entire proceedino. If they are going to continue

or make a motion for a continuance here, we are

going to object to it.” (R. 74)

It is apparent from the tenor of the Record that

Respondent’s numerous objections were calculated to place

Complainant in the position of proceeding with its case-in-

chief without the testimonial constituents thereof, Respondent

objected on numerous occasions to a continuance. (P. 67)

At the very inception of the hearing, Hearing Off~:.:~cv

Home inquired:

—7—

“HEARING OFFICER HORNE: Do you think

your case would be prejudiced by not having

the list of witnesses?

MR. REGAN: I am entitled to take the

depositions of all the witnesses.

HEARING OFFICER HORNE: Well, I think

we will have to go on with this hearing.

I think that your objection will be made

a part of the record and the Board will take

note of that.

Any other objections before we start, or any

other motions?

MR. REGAN: I have none, Mr. Home.”

(P. 5,6)

Mr. Began’s answer was clearly unresponsive to Mm,

Home’s question.

Finally, at the close of Complainant’s case—in—

chief, Respondent’s counsel stated as follows:

“HEARING OFFICER BORNE: What is your

objection?

MR. BEGAN: I respectfully object to any

continuance of the hearinq, I am here ready

to go forward, despite the procedural failure

of the State to give us any list of witnesses.

We don’t know what the people are going to

testify, but now that we have heard their testi-

mony, we are prepared to make our legal argu-

ment on the basis of that testimony.” CR. 67).

We note that hearings on matters before this Board

are certainly adversary proceedings, and that attorneys for

the respective parties are obliged to develop and pursue

such tactics as are legally available to them to best serve

the interests of their clients. Counsel for Respondent has

argued this point of law with skill and vigor; however,

the testimonial evidence objected to will be allowed and

considered by this Board.

—

449

—8—

Respondent is in the business of making malt.

Malt is made by soaking grain in water and allowing it

to germinate. Respondent drys the germinated grain by

forcing warm air through it and out certain vents. Mr.

Howard 0. Chinn, Chief Engineer for the Environmental

Control Div’ision of the Illinois Attorney General’s Office

and a registered professional engineer, testified that

he visited Respondent’s facility in July of 1973 and

toured the plant. Mr. Chinn observed six roof ports on

top of the building exhausting warm, moist air which had

a musty, ~damp odor. (R. 16). Mr. Chinn testified to the

odor and the technological feasibility of controlling same.

(R. 17—20)

Three citizen witnesses testified regarding

the

odors emanating from Respondent’s facility. Caroline

Blaha lives 1/2 block from Respondent’s facility and has

lived there for 32 years. She testified to: “Gassy smells,

and then sour smells and like malt smell. Really bad

malt smell.” (R. 43). Mrs.Etaha testified that she smells

the odors almost every day and is frequently forced into

her house so that she cannot enjoy

her backyard. (R. 45)

Respondent attempted to rebut

the testimony of

Mrs. Blaha by presenting the testimony of Mr. Gordon D.

Foster, Respondent’s Executive Vice President, who stated

that Respondent’s facility was shut down during the summer-

time. Mrs. Blaha had testified that she could smell the

odors almost every day. However,’while it 

true that

Respondent does not operate during the summertime, it is also

true that Respondent devotes this off-time to cleaning its

malting chambers.

CR. 141)

Margaret Koscielski also lives within 1/2 block

of Respondent’s facility and has

lived~there for over six

years. (R. 48) 

Mrs. Koscielski testtfied to a continual

“awful moldy odor” which is sometimes of such intensity that

she has actually become nausiated. (P. 49). In an attempt

to alleviate the effects of the odor, Mrs. Koscielski bought

an air conditioner as soon as she could afford it.

CR. 49)

She also stated that she was bothered by the odors during

the summer months.

Mr. Joseph Kernic testified that he has lived across

the street from Respondent’s facility on and off for fifty-

two years. CR. 55). Mr. Kemnic stated that not only does

he get a smell “like home brew fermenting but also periodi-

cally puffs of sulphur come out of Respondent’s roof.” (R.

Respondent had stipulated to the testimony of

five additional citizen

witnesses whose testimony is sub—

11 —450

—9—

stantially the same 

set out above. Now, Respondent

objects to consideration of that stipulated testimony,

because the list of witnesses was not presented before

the hearing began. We have previously ruled on this

question and will, accordingly, accept the stipulated

testimony.

Respondent’s witness. Robert

S. Kelly, is ~ñ

investigator hired by the Respondent to determine the

number of living units within one city block in each

direction froni Respondent’s facility. He testified

“Just in round figures it is in the neighborhood of 360.”

CR. 128) and that “I was about to say approximately

3.6 or 3.5 individuals per dwelling which would put the

number of people residing in that area in the neighborhood

of 1,100 or 1,200 people,” CR. 131).

It is apparent, even taking the population

estimate by Mr. Kelly as true, that Respondent has mis-

interpreted the nature of the Environmental Protection Act.

The Act does not say every person in a neighborhood must

be affected (or come in and testify for that matter).

what the Act does say is that Respondent cannot 

unreasonably

interfere with the enjoyment of life or property. The

question is not t~enumber of peoplebut the unreasonable-

ness of the interferences.

Respondent has spent $125,000.00 for a baghouse

at its facility,

but nothing for odOr control.

(R. 101)

We are satisfied that Respondent violated Section

9(a) of the Act by unreasonably interfering and continuing

to unreasonably interfere with the enjoyment of life of

citizens in the environs of its facility.

This Opinion constitutes the findings of fact

and conclusions of law of the Board.

IT IS THE ORDER of the Pollution CQntrol Board

that Respondent shall:

1. Within 60 days of the date of this Order cease

and desist violation of Section 9(a) or file with the Agency

a statement detailing the abatement procedures it intends

to implement. In no event shall Respondent achieve compliance

later than 180 days from the date of this Order.

2. Pay to the State of Illinois the sum of $1,000.00

within 35 days from the date of this Order. 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, Spring-

field, Illinois 627.06.

1-1

—451

—10—

Mr. Marder dissents.

I,

Christan L. Moffett, Clerk

of

the Illinois

Pollution Control Board, certify that the above Opinion

and Order was adopted on this

__________

day of

1974 by a vote of