ILLINOIS POLLUTION CONTROL BOARD

April

5,

1973

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

 PCB 71-88

RALSTON PURINA COMPANY,

Respondent.

Mr. Larry

 R. Eaton, Assistant Attorney General,

 for the

Environmental Protection Agency;

Mr. John W. Yoder, Mr. Walter A. Yoder, and Mr. August F.

Obtinger, for Ralston Purina Company.

OPINION

AND

ORDER OF THE BOARD

 (BY SAMUEL T. LAWTON, JR.):

This case was commenced by the Environmental Protection

Agency

 (“Agency”)

 with the filing of a complaint against

Ralston Purina Company

 (“Ralston”) on April

26,

 1971.

The

complaint charged Ralston with violation of the Ringlemann

smoke standard of Rule

 3-3.122

 of the Rules and Regulations

Governing the Control of Air Pollution

 (“Rules”), promulgated

pursuant to Section 5-1.2 of the Air Pollution Control Act;

with operation of its boilers in violation of Rule 3-3.112

of the Rules, effective pursuant to Section 49(c)

 of the

Environmental Protection Act (“Act”); causing, threatening,

or allowing the discharge or emission of fly ash into the

environment so as to cause or tend to cause air pollution in

violation of Section

 9(a) of the Act; causing excessive noise

in the operation of its plant on December 18,

 1970,

 so as to

cause, threaten or allow air pollution in violation of Section

9(a) of the Act; creation of odors

 so as to cause, threaten or

allow air pollution in violation of Section

 9(a)

 of the Act;

operating its plant without

 a permit from the Agency in

violation of Section 9(b)

 of the Act; failing

 to submit since

approximately October

15,

 1967,

 a “Letter of Intent” relating

to its coal fired boilers in violation of Rule 2-2.22 of the

Rules; and failing since April 15, 1968,

 to submit to the Air

Pollution Control Board or to the Agency an air contaminant

emission reduction program

 (ACERP)

 relating to its coal fired

boilers in violation of Rules

 2—2.31(f)

 and 2-2.41 of the Rules.

—

437

—2—

Ralston operates a large feed manufacturing plant near the

City of Bloomington,

 Illinois,

 in McLean County.

 At this

facility approximately 160 different feeds are manufactured.

The facility also has a soy bean processing plant where soy

bean oil is manufactured or extracted.

 There has been no soy

bean extraction processes at any facility in the area other

than the Ralston operation since 1969

 (R. 126).

 The area in

which the Ralston facility is located is partially industrial

 and partially residential, with a significant public housing

development located nearby.

 This public housing development,

Sunnyside Court, was constructed after Ralston was already

operating, but the area already included houses on at least

two sides of

 the facility

(R.

 609,

 613-614).

 People who reside

in Sunnyside Court do so because they are assigned there by the

Housing Authority

(R.

 546).

Before discussing the substantive issues of this case,

there are several preliminary matters which must be first re-

solved.

 Ralston moved to dismiss and strike the complaint

because, Ralston asserts, the allegations of the complaint are

conclusory and insufficient, thereby depriving the Respondent

of his rights to be apprised with exactness and conciseness

as to

 •the respective charges.

 We disagree.

 The complaint

states with adequate specificity those things which Ralston

was charged with doing in violation of the law.

 Accordingly,

we deny the motion to dismiss.

 Ralston also alleges that the

complaint should be stricken because of the nature of the action

which Ralston alleges is quasi-criminal, thereby depriving

Ralston of its right to a fair trial and due process of law.

These precise contentions were rejected by the Illinois

Appellate Court Third District in the case of C.M.

 Ford v.

Environmental Protection Agency

;

___

 Ill.

 App. 2d

—

 (1973);

PCB71-307 and in the Fourth District in the case of Bath,

 Inc.

v. Environmental Protection Agency

 Ill.

 App.

2d

PCB71—52, 71—244.

A Petition to Intervene in the enforcement proceedings was

filed by the McLean County Economic Opportunity Corporation

(Corporation) and Jane Stiliman

 (Stiliman).

 The Corporation

alleged that it, representing low income individuals living

in the housing project adjacent to the Ralston facilities, may

be adversely affected by Board orders, and that Stiliman,

an

individual,

 is a resident of the housing project and may also

be adversely affected.

 Intervention was allowed by the Hearing

Officer.

In an attempt to obtain pre-trial discovery,

 Ralston

attempted to take a discovery deposition of Stiliman.

 Although

proper notice was given to Stillman regarding the deposition,

and although the attorneys for both Ralston and Stiliman and

a court reporter appeared for the deposition, she did not

appear.

 Ralston moved to dismiss

the

 intervenors,

 to prohibit

Stillman to testify at any hearings in the matter, and moved

7— 438

—3—

further that the Board censureStillman and charge her costs

for the attempts to take her deposition.

 The Board has no

 censure powers, nor has it power to assess costs in such a

situation.

 However, when

 a party has asked for leave to

intervene and has been granted the privilege of intervention,

that privilege ought not be abused as was done in this case.

Those who intervene and are given notice of depositions

should appear.

 The record indicates that the Corporation

was represented by counsel at the hearings of September

8

and

9,

 1971, and that Stiliman testified at the hearing of

September 19, 1972 regarding odor and ash problems related

to the Ralston facility.

 At this later hearing, Corporation

was not represented by counsel.

 We will grant the motion to

dismiss Stillman from the case, but deny the motion as to the

Corporation.

 Stillman’s abuse of our procedures should not

redound to the detriment of Corporation.

 We will not grant

the motion to prevent Stiliman from testifying.

 The Act

requires that citizens be allowed to testify, and we will

therefore allow Stiliman’s testimony to stay in the record.

After the complaint was filed, there was extensive pre-

hearing negotiations between the parties.

 There were two

days of hearings in September of 1971.

 On the third day,

September 10,

 1971, a reported settlement was reached and was

subsequently transmitted to the Pollution Control Board

(Board),which rejected the proposed settlement on November

23,

 1971, because the Agency had not concurred in the settle-

 ment and because there was an inadequate factual foundation

on which the Board could make decision.

 In September of

1972, a second settlement was presented to the Board, which

settlement was again rejected on the basis that there was an

inadequate factual foundation on which to base

 a decision.

On November 28,

 1972,

 a final hearing was held and upon con-

clusion of that hearing,

 all parties rested.

 The proposed

settlement was resubmitted and the parties have asked that

the Board decide the case based on the record it now has.

Certain of the substantive allegations of the complaint

are easily resolved.

 Excessive noise does not constitute air

pollution in violation of Section

 9(a)

 of the Environmental

Protection Act.

 Title VI of the Act contemplates by its very

nature that the control of noise must be implemented by regu-

lation or standard adopted by the Board.

 Accordingly,

Paragraph

 5 of the complaint is dismissed.

Smoke emissions in excess of that allowed by Rule 3-3.122

are alleged to have occurred on June 2,

 1970.

 The deposition

of Robert Hendricks contains pertinent evidence relating to

this charge.

 He estimates that on the day in question,

 he was

on the plant property for approximately 20 minutes and that

for about half that time there were smoke emissions in excess of

 2 on

the Ringlemann Chart.

 Both times given by the witness were

7

—

439

—4—

estimated.

 The witness did not take his measurements in

accordance with the directions on the Ringlemann Chart, but

he also testified that he

 has taken as many as 60 Ringlemann

readings during his employ with the Agency

(p.

 23).

 While

it is not necessary that the readings be made with a

Ringlemann Chart,

 or that the readings be made with mathematical

exactitude as relates to the directions on the chart, the

evidence must be greater than that here.

 Although the

witness had made numerous readings in the past,

 there is no

evidence that he was a trained smoke observer, nor was there

any evidence as to any expertise the witness had to make

Ringlemann evaluations.

 Accordingly, we find no violation

of Rule 3—3.122.

The Agency also charged operation of equipment without

a permit in violation of Section 9(b)

 of the Act.

The

complaint in this case was filed prior to the Board decision

in Environmental Protection Agency v. Southern Illinois Asphalt,

PCB71—3l, in which case the Board held that there could be

no operating permit violations until such time as the Board

had adopted its own operating permit regulations.

 Consistent

with our decision in Southern Illinois Asphalt, we find no

violation of Section 9(b).

The Agency’s allegations regarding the “Letter of Intent”

 (Rule 2-2.22), the Air Contaminant Emission Reduction Program

(ACERP)

 (Rules 2—2.31(f) and 2-2.41)

 and coal boiler operation

violations

 (Rule 3-3.112)

 all depend on whether the Ralston

facility is located in a standard metropolitan statistical

area

 (SMSA).

 If Ralston is located in

 a SMSA,

 its allowable

emission rate is 0.6 pounds of particulates per million BTU

input

 (Rule 3-3.112), and its estimate of 0.79 pounds of

particulate per million BTU input in its “Letter of Intent”

(Complainant Ex.

7)

 placesthe boilers in excess of the

particulate limits.

 Then,

 the Agency contends, under the

Rules Ralston would be required to file an ACERP describing

how the facility would be brought into compliance.

 The Agency

further contends that the estimated 0.79 pounds per million

BTU is misleading,

 thereby rendering the “Letter of Intent”

invalid.

 The Agency, continuing to construct a house of cards,

claims that even if Ralston is not in an SMSA,

 its estimate

of 0.79

 is so close to the allowable standard of 0.8 pounds

of particulate per million BTU input

 (Rule 2-2.53)

 that

Ralston should have filed an ACERP anyway.

 The Agency bases

this argument on the fact that Ralston estimated that its

coal had a

5.3

 ash content

 (Complainant Exhibit 7), was

purchased in Illinois

 (Complainant Exhibit

 7), and therefore

would produce more particulates that Ralston so estimated.

However, the Agency neglected to provide any information to

rebut Ralston’s 5.3

 ash content estimate.

 Ralston’s figures

regarding fly ash content and particulate emissions being the

only such figures in the record, we are accepting them.

7—

440

—5—

The Agency contends, despite the definition of SMSA

(“...

 county which has at least one city with a populaiton of

at least 50,000, and the surrounding counties which contain

the suburban areas for these cities.”) contained in Table

I

of the Rules, that McLean County

 is an SMSA.

 It bases the

contention on the inclusion of Champaign County as an SMSA

in Table

 I, pointing out that neither Champaign nor Urbana

has a population

 of 50,000, but that collectively,

 they do

in fact have

 a population

 in excess of

 50,000.

 The Agency

then states that neither Bloomington nor Normal has a popula-

tion of

 50,000, but, again as Champaign—Urbana, the collective

population exceeds

 50,000.

 Therefore, Ralston

 is located in

an SMSA.

 This apparently reasonable argument must fail for

the simplest of reasons:

 Table

 I contains an exclusive list

of SMSA’s in Illinois, and the Ralston facility is not in an

area included on Table

I.

 The Board cannot unilaterally

amend duly adopted Rules.

For the above reasons, we find no violations of Rules

2—2.22, 2—2.31(f),

 2—2.41 and 3—3.112.

The record overwhelmingly demonstrated that Ralston caused

air pollution due to odors.

 Several witnesses who either live

in the Sunnyside housing development across the street of

the

Ralston facility or who work in the neighborhood testified at

the hearing of September 19,

 1972.

 A brief summary of their

testimony regarding odor from the Ralston facility reveals

the severity and duration of those odors.

Dorothy J. Stewart, an official of the Bloomington Housing

Authority, testified that the odor is serious as far as two

blocks away,

 and during hot weather the odor is unbearable and

smells like spoiled food

(R.

 498).

 Ms. Stewart is in the area

nearly every day

(R.

 497).

Mr. John L.

 Brown, Director of the Sunnyside project,

simply described the odor as

 “undescribable bad”

(R.

 501).

Mr. James Herbert,

 an employment counselor who is in the

Sunnyside area frequently described the odor as “worse than

dog food”

(R.

 570).

Ms. Sharon Hamilton,

 a resident of the project, described

the odor as making both her and her children nauseous

(R.

 514,

516)

Ms. Jane Stiliman,

 a resident of Sunnyside and also a

Director of the project, described the odor as follows:

“terrible.

 There’s no describing it”

(R.

 532).

Ms. Patricia Wannemacher, who worked in an office in the

area, described the odor as

 “pretty bad”

(R.

 536)

 and “very

offensive”

(R.

 540)

7—441

—6—

Mr.

 John H.

 Porter, Jr. testified that odor, noticeable

on an occasional basis, was “a kind of heavy opressive kind

of smell that would tend to make me gag”

(P.

 560)..

Mr. Earl Johnson testified that he had been a resident of

Sunnyside Court but obtained a doctors certificate allowing

him to move from the public housing development.

 The odor when

he lived at Sunnyside,

 stated Mr. Johnson,

 “smelled like.. .a

bunch of old bones”

CR.

 580).

Ms. Marian Jones testified that the odor was “like some-

body cooking huge amounts of garbage or something”

(R.

 595).

Ralston attempted to rebut the above testimony with

evidence that other facilities in the area, namely

 a sewage

treatment plant, was the cause of many of the odors.

 However,

the other witnesses were able to distinguish between Ralston’s

odors and other odors in the area

(R.

 504,

 520,

 540).

Ralston also asserted that their facility was located in the

area prior to the Sunnyside Court housing project

 (See

testimony of Mr.

 Robert A. Hopkins,

P.

 608—614), but while

priority of location is a factor to be considered by the Board

pursuant to Section 33(c) (1)

 of the Act, operating

a.

 .~tus-

trial facility in

 a mixed residential, agricultural ai.~

industrial area is not an excuse to cause residents of that

area to bear the unconscionable burdens that they were forced

to bear for so long.

The odor and dust nuisances had in fact remained unabated

for approximately 20 years

(P.

 552).

 Hopefully, the proposed

and by now partially implemented compliance program set forth

in the settlement will in fact have abated the odor and dust

nuisances.

The evidence supporting the Agency’s allegation of

excessive fly—ash from the Ralston facility causing air pollu-

tion in violation of Section

 9(a) of the Act is also well

supported by the evidence in the record.

 There

 is overwhelm-

ing evidence that there was much dust in the area,

 and that

the dust did create a serious cleaning problem and an often

serious health hazard, and that the dust in fact was attribut-

able to the Ralston facility described by residents and workers

in the area at the September 19, 1972 hearing.

The compliance program,

 set forth in Paragraphs 3-8 of the

Stipulation for Settlement, is as follows:

 Respondent’s boilers

have been converted from coal to oil,

 and certain control

equipment has been installed pursuant to Agency permit,

 thereby

eliminating any particulate emissions problems

 (Paragraph

3);

certain noise abatement practices have already been instituted

(Paragraph 4); fish processing,

 a significant odor producing

activity, has ceased and will not resume in the future

 (Para—

7

—

442

—7--

graph

5);

 internal housekeeping practices designed to improve odor

problems have been submitted

 to the Agency for the Agency’s approval

or modification

 (Paragraph 6); the vent stacks from the soy bean

flake dryer operation will be modified to eliminate odor nuisance

from that source (Paragraph

 7) and Respondent generally promises

comply

with

the

Chapter

Air

Pollution

 Regulations of the Pollu-

tion Control Board

 (Paragraph

8),

cost

figures

respecting

the

compliance program appear in the

record.

However,

the

extent

that

the

compliance

program

described

‘the

Settlement

is,

fact,

inadequate

bring

Ralston

into

full

compliance

with

the

Act

and

Rules,

Ralston

will

required

ta:~e whatever

sters

are

necessary

bring

itself

into

full

com-

pliance,

iiccord~nglv,

will

the

comptiance.

program

with

the

nnovso

that

Fslston

and

the

Agency

report

the

Board

within

days

entry

this

Opinion

and

Order

this

case

the

 status

Ralstont

compliance,

that

may

enter

additional

orders

may

necessary.

will

further

assess

nenaity

97,

500

against

Ralston

for

its continued and flagrant causing and allowing odor and

dust

nuisances,

thereby violating

the

Section

9(a)

prohibition

against

such

nuisances.

Considerina

the

duration

 of the offense,

 a much higher

penalty

would

appropriate

However,

arel

imited

its

assessment

the

period

specif

ted

the

comolaint.

This

O~iOiOfl

constitutes

the

tindings

 tact

cue

conclusions

of

law

the

Board.

IS

THE

ORDER

the

Pollution

Control

Board:

:L.

The

 compliance

program

set

forth

paragraphs

3-8

the

Stipulation

for

Settlement

 approved by

the

 Board

and made a part

 this

 Order,

 except as modified by

this Opinion.

 Ralston

and

the

Agency

 shall

report

 to the Board within

90

days

the

entry

 of this Order regarding the

status

of

Ra:Lston

 ‘s compliance with

all

relevant

regulations

and

statutory provisions with respect to emissions

into

the

air

from

its

operation.

The

 Board retains

jurisdiction

for

such

other

and

further

orders

 as may be

appropriate

in

the

premises.

3.

Ralston

shall

 pay a

penalty

$7,500

 to the

State

Illi-

nois

 for violations

 as found in the Opinion.

 Payment shall

made

before

 May 14,

 1973 by

certified

check

money

order,

and

shall

 sent to:

 Division of Fiscal

Services,

Illinois

Environmental

Protection

Agency,

2200

Churchill

Drive,

Springfield,

Illinois

62706.

Chris-tan

Moffett,

Clerk

of

the

Pollution

Control

Board,

certify

that the

above

Opinion

and

Order

was

adopted

the

~5’~

day

April,

1973,

vote

to

~

7— 443