ILLINOIS POLLUTION CONTROL BOARD
May •23, 1974
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
)
vs.
)
PCB 73—330
OZITE CORPORATION,
Respondent.
James K. Jenks, Assistant Attorney Gene~a1 for the EPA
John R. Sloan, Attorney for Respondent
OPINION AND ORDER OF THE BOARD (by Mr. Henss)
Ozite Corporation owns and. operates a carpet manufacturing
facility located at 1755 North Butterfield Road, Libertyville,
Lake County, Illinois. Of specific interest in this proceeding
is that portion of the manufacturing process involving the
preparation, application and curing of a latex foam type material
that is applied on a continuous basis to a moving roll of carpet.
In its Amended Complaint, the Environmental Protection Agency
charges that emissions from the latex foam curing oven contain odorous
contaminants of sufficient quantity, duration and characteristics
so as to cause air pollution in violation of Section 9(a) of the
Environmental Protection Act. Ozite was charged with installation
of air pollution control devices (specifically, a carbon filtration
system and an ozonator) in December 1971 without an Agency permit
in violation of Section 9(h) of the Act and Rule 3—2.100 of the
Rules and Regulations Soverning the Control of Air Pollution and
with operating an existing omission source since July 1, 1973 without
an Agency operating oermit in violation of Section 9(b) of the Act
and Rule 1fl3(b) (2) of the Air Pollution Control Regulations.
On Sentember 6, 1973 Respondent filed a Special and Limited
ApPearance, Motion to Dismiss Count II, Demand for Jury and an
Answer to Comolaint. Our Order of September 13, 1973 denied
12
—
337
—2—
the Special and Limited Appearance, struck the Jury Demand and
ordered the Motion to Dismiss Count II taken with the case.
In the September 13, 1973 Order, the Board advised Ozite
that the issue of monetary penalty was pending before the
Illinois Supreme Court on a certificate of importance and, until
the Supreme Court decided that issue, the Board would continue
to levy monetary penalties in order to achieve uniformity in
application of the law on a statewide basis.
Respondent then filed a second Motion to Dismiss Count II
of the Complaint, which for reasons clearly explained,
was
denied
by the Board on October 4, 1973. Ozite responded on November 2,
1973 with another Special and Limited Appearance, a Motion to
Strike and a Motion to Dismiss Counts II and III of the Amended
Complaint. The Special and Limited Appearance and Motion to
Strike were denied by Board Order on November 51, 1973 citing
reasons expressed in the September 13, 1973 Order. The Motion
to Dismiss was again ordered taken with the case.
We reaffirm all previous denials today. On March 29, 1974
the Illinois Supreme Court decided in City of Waukeqan vs. The
Pollution Control Board, that this Board has authority to impose
monetary penalties. The Court said:
the Act obviously contemplates a specialized
statewide and uniform program of environmental
control and enforcement. The Legislature con-
sidered this to be more readily brought about if
the responsibility of imposing penalties was
placed on the same authority that conducted
hearings and determined violations. The Board
is to conduct hearings and, if violations are
found, appropriately it is to impose penalties.
The Legislature may confer those powers upon
an administrative agency that are reasonably
necessary to accomplish the legislative purpose
of the Agency
. . .
and we consider that it was
appropriate to give the Board the authority to
impose monetary penalties. There are adequate
standards provided and safeguards imposed on the
power given the Board to impose these penalties.
The granting of this authority does not constitute
an unconstitutional delegation of judicial power.~
12—338
—3—
In its Motion to Dismiss Count II of the Amended Complaint,
Ozite argues that the equipment installed at the Libertyville
plant was exempt from any permit requirement since the Rules and
Regulations contained no provisions relating to control of odors.
Section 9(b) of the Illinois Environmental Protection Act
provides: “No person shall: construct, install, or operate any
equipment, facility, vehicle, vessel, or aircraft capable of
causing or contributing to air pollution or designed to prevent
air pollution, of any type designated by Board Regulations,
without a permit granted by the Agency, or in violation of any
condition imposed by such permit.” Section 3-2.110 of the Rules
and Regulations, in effect during December 1971, stated that a
permit shall be required “for installation or construction of new
equipment capable of emitting air contaminants into the atmosphere
and any new equipment intended for eliminating, reducing or con-
trolling emission of air contaminants”. Air contaminants are
defined in the Rules and Regulations as: “Particulate matter,
dust, fumes, gas, mist, smoke or vapor, or any combination thereof.”
Respondent argues that the word “odor” is conspicuously
absent from the definition of air contaminants contained in the
old Rule, and therefore odor control devices are excluded from
the permit requirement. In its Response to the Motion to Dismiss
the EPA states “an odor is merely the characterization of an
individual olfactory response to the presence in the atmosphere
of any particulate matter, dust, fumes, mist, smoke or vapor;
all of which were specifically included in the definition of air
contaminants contained in Section 1 of the Rules.”
In EPA vs. Mystic Tape, PCB 72-180, Mystic was charged with
violations similar to those alleged in this proceeding. As in
the instant case, Mystic defended on the ground that the
Regulation did not specifically require installation of odor
~hatement equipment. In Mystic, the Board ruled that Mystic was
required, pursuant to Rule 3—2.110, to secure an installation
permit prior to installation of the odor control equipment.
On appeal, the First District Appellate Court set aside inter
alia the Board’s finding on the permit issue. In doing so, the
court stated: “In view of our basic conclusions in the case,
we consider that this part of the Board~sOrder falls for lack of
any foundation as to determination of standards. We further
believe that a careful reading of Section 9(b)
,
quoted above,
discloses that it applies only to the construction, installation
or operation of any equipment of any type designated by Board
12—339
—~
Regulations. Since there have been no regulations promulgated by
the Board covering the type of equipment installed here, this part
of the Board’s Order must fall for that reason also.” The
Appellate Court decision is subject to review and is not yet final.
We do not believe the Legislature intended Section 9(b) to
have the meaning attadhed to it by the Court in Mystic.
The Board interprets Section 9(b) to mean that once the
Board designates a particular species of solid, liquid, gaseous
matter, odor or form of energy as a “contaminant” capable of
causing or contributing to air pollution as that term is defined
in Section 3(b), then the construction, installation or operation
of any equipment, facility, vehicle, vessel or aircraft capable
of emitting that “contaminant” into the Illinois atmosphere or
designed to prevent emission of that “contaminant”, shall not take
place without a permit granted by the Agency or in violation of
any condition imposed by such permit.
The Appellate Court interpretation would virtually destroy
the legislatively imposed duties of the Board and the Agency.
It would require the Board and the Agency to spend all their
efforts, time and financial capabilities in the impossible pursuit
of a set of regulations which would establish a particular piece
of control equipment or control system for each particular
“contaminant” for which standards have been set. The folly of this
type of bureaucratic paper shuffling would be that each new set of
regulations specifying particular equipment would be obsolete at
the moment of issuance. Pollution control is not static. It is
so dynamic that even the experts have dLfficulty in keeping abreast
of the rapidity of change.
Title 7 of the Act provides the rules by which this Board
must abide in adopting, amending or repealing substantive
regulations. Under the Appellate Court interpretation, the Board
would be required, in attempting to keep such regulations current,
to be in a continual state of regulatory hearings and to be
continually formulating inherently obsolete control equipment
specifications. Such a process would cause the collapse of the
entire Illinois environmental protection program.
We do not believe it was the intent of the Legislature to
saddle the Board with the obligation to adopt Regulations which
specify pollution control equipment. The infinite number of
12 340
—5--
variables (i.e. type contaminant, concentration, flow rate,
temperature, emission source configuration, etc.) to be
considered in assessing every source of emission in Illinois
requires not a strict set of equipment specifications but
rather a case by case determination for effective control. This
determination is now available through the Agency’s various permit
sections with the additional safeguard of appeal to the Board
in the event a permit is denied.
The Agency has filed a Petition for Leave to Appeal the
Mystic decision. That Petition is now pending in the Illinois Supreme
Court. If the Supreme Court grants leave to Appeal, the final
decision on the Mystic issues will still be months away. Pending
a decision in Mystic, the Board will continue to operate within
the constraints of the Act as we believe the Legislature intended.
Finally, we would point out that the Appellate decision in
Mystic is technically not applicable in the instant case because a
different Appellate District is involved.
Section 3-2.110 of the Rules and Regulations when read in
conjunction with the definition of “air contaminants” provides
that a permit was required for any equipment capable of emitting
or intended for the control of particulate matter, fumes, gas,
mist, smoke or vapor. Odorous materials may be present in the
gaseous or vapor state apart from any other material or as an
adsorbed or absorbed contaminant on particulate matter or in
liquid droplets. An odor is merely a physiplogical response in
an individual’s olfactory region to a stimulus (odorant). But
more important to the permit issue, is the recognized fact that
an odorant must be in the gaseous or vapor state to be detected
by the human olfactory system. (Quantitative Odor Measurement,
John L. Mills et al., Journal of the Air Pollution Control
Association, Vol. 13, No. 10, October, 1963, p. 467) An odor
indicates the presence of a gas or vapor within the definition of
air contaminants (as that term is defined in the Rules and
Regulations) whether or not the word odor is specifically contained
therein.
For the reasons thus given the Board is of the opinion that
Ozite was required under Section 9(b) of the Act and Rule 3-2.110
of the Rules and Regulations to secure an installation permit and
accordingly, Respondent’s Motion for Dismissal of Count II is
denied.
12—341
Ozite next moves for dismissal of the charges in Count III
of the Amended Complaint. This motion is also based on the
argument that the Board has not adopted regulations concerning
odor equipment and therefore Ozite is not required to obtain an
operating permit for odor control equipment.
In the Amended Complaint, the Agency alleges that Respondent
has violated both Section 9(b) of the Act and Rule 103(b) (2) of
the current Regulations. It has already been noted that 9(b)
requires an operating permit for operation of equipment “capable
of causing or contributing to air pollution or designed to
prevent air pollution, of any type designated by Board Regulations”.
Air pollution is defined by the Regulations in Rule 101 as:
“The presence in the atmosphere of one or more air contaminants
in sufficient quantity and of such characteristics and duration
as to be injurious to human, plant or animal life, to health or
to property, or to unreasonably interfere with the enjoyment of
life or property”. Air contaminant is defined as “any solid,
liquid or gaseous matter, any odor or any form of energy that is
capable of being released into the atmosphere from an emission
source”. (Rule 101) The Regulation designates gaseous matter
and odor as a type of air pollution. Since Respondent is
capable of emitting gaseous matter and odor in sufficient
quantities and of such characteristics as to unreasonably inter-
fere with the enjoyment of life or property we find that Section
9(b) is applicable and Ozite was required to obtain an operating
permit.
In addition, Ozite was required to obtain an operating permit
under the provisions of Rule 103(b) (2) of the Air Pollution
Control Regulations. Rule 103(b) (2) states: “No person shall
cause or allow the operation of any existing emission source or
any existing air pollution control equipment without first
obtaining an Operating Permit from the Agency no later than the
date shown in the following schedule:...”. Under Rule 101 of
the Regulations an emission source is defined as “any eouipment
or facility of a type capable of emitting specified air con-
taminants to the atmosphere”. A specified air contaminant is
“any air contaminant as to which this Chapter contains emission
standards or other specific limitations”. (Rule 101)
Those air contaminants for which the Board has “specified”
standards and limitations include smoke, particulate matter,
sulfur dioxide, sulfuric acid mist, organic materials, carbon
monoxide, nitrogen oxide, asbestos and odors from inedible
rendering processes.
of emittingWe
find
smokefrom asthe definedrecord inthattheOzite’sRegulationsequipmentand
wastherefore“capable’t
we find that Respondent was required under the provisions of
Rule 103(h) (2) to obtain an operating permit. Smoke is defined
as “small gas borne particles resulting from incomplete combustion,
consisting predominantly but not exclusively of carbon, ash and
12—342
—7—
other combustible material, that form a visible plume in the
air”. (Rule 201)
Our finding that Respondent was capable of emitting smoke
to the atmosphere is principally based upon testimony of
Respondent’s employees. Evelyn L. Burdick, an Ozite employee,
testified that she had. noticed an ammonia type odor within the
plant “all the time” when she first began working at the plant
(R. 495). She observed a haze within the plant which caused
her eyes to water and burn and made breathing difficult (R. 503).
She indicated that other employees had similar reactions to the
haze and she felt that these reactions created a big problem
among the employees (R. 504). This ultimately led the union
to present a petition to Ozite management (R. 5l2~.
William McGowan, an Ozite employee, testified that a “sort
of smoky haze” was released into the plant up to three times per
day prior to installation of a carbon filtration control system.
McGowan stated that the haze developed whenever the oven mal-
functioned due to mechanical problems. Doors along the length
of the oven had to be opened quickly to release excess heat to
prevent the carpets from shrinking. (R. 565) He testified
that pieces of “foam or something” dropped into the oven probably
were responsible for the smoky haze that caused his eyes to water
and his nose to burn. He stated that smoke or fumes released into
the plant during an oven malfunction was the same smoke or fumes
normally exhausted~”throuqh the plant’s vents (R. 566).
It is our conclusion that a furnace which has been observed
to emit ‘smoky haze” into the interior of a plant is “capable”
of emitting this same smoky haze to the atmosphere if its
emissions are ducted to the atmosphere without control equipment.
The carbon adsorption system was equipment intended to reduce
or control the emission of a specified air contaminant (smoke)
to the atmosphere. We therefore find that Ozite was required
to obtain an operating permit under the provisions of Rule 103(b) (2)
Before reviewing substantive matters of this case relating
to alleged air pollution, it is necessary for purposes of
clarification that we comment on the agreement of counsel per-
taining to testimony of witnesses. Near the close of the record
in the first of three hearings, counsel stipulated that all
subsequent witnesses would be allowed to testify as to their
observations up to the actual date of testimony. (R. 165) At
that time the Agency had not filed its Amended Complaint and,
pursuant to the time constraints of the original Complaint, a
violation could. only be shown for the period December 8, 1971
to August 8, 1973. Subsequently, on October 4, 1973 the Agency
filed its Amended Complaint to which Ozite did not object. The
Amended Complaint alleged pollution from on or about April 1, 1971
12—343
—8—
continuing every day of operation to the filing of the Amended
Complaint.
In order to prepare an orderly and understandable opinion
pursuant to these legal maneuvers, the Board will accept the
testimony on these terms:
1. All testimony taken to page 165 of the record
on September 28, 1973 relati.ng to violations
of Section 9(a) of the Act will be applicable
only to violations which allegedly occurred
between December 8, 1971 and August 8, 1973;
2. After page 165 of the September 28, 1973
record, testimony will be considered for the
period of December 8, 1971 to September 28, 1973~
3. The testimony taken on October 26, 1973 and
November 3, 1973 will be considered as applicable
to the period. April 1, 1971 to October 4, 1973,
the last date of violation alleged by the Agency.
Testimony covering the period October 4, 1973
to November 3, 1973 will not be considered as
proof of a violation since none was alleged for
that period.
Ozite’s manufacturing plant is located at the extreme
northwest corner of the Village of Libertyville. It is bounded
on the east by Butterfield Road, on the south by railroad tracks,
on the west by open fields and on the north by Peterson Road.
Three residences are located along a section of Butterfield
Road east of the plant.
Ozite’s chief engineer, William H. Kiley testified that
operations at the manufacturing plant commenced in late 1969
or early 1970 (R. 202). The foam oven was not installed until
April 1971 (R. 207). The foam compound, consisting of styrene—
butadiene rubber latex, frothing soaps, and oil antioxidant,
a powder antioxidant, alkalis, dispersents, mineral fillers,
wax, zinc oxide, sulfur, zinc mercatobenzo—thiozole, zinc
diethyl-dithio-carbonate and carbon black preground color (R. 211-
212), is mixed in two tanks on the foam oven platform. After
mixing, the liquid foam mixture is pumped to an oscillating
hose or tube that spreads the liquid foam on the back of the
carpet to a depth controlled by a “doctor bar”. The coated
carpet then enters the curing oven which “vulcanizes” the foam
at a temperature of about 220°F.
12—344
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Kiley testified that it was possible for odors to be
emitted during the preparation of the latex foam mixture (R. 219)
and any odors thus emitted would be exhausted to the atmosphere
through six roof fans (R. 200).
After commencing the foam oven operation and until the
installation of a carbon adsorption system in December 1971,
emissions from the oven were vented through five “penthouses”,
each capable of discharging 18,000 cfm of air (R. 208). The
“penthouses” have since been removed and emissions from the
oven are exhausted through a duct system to the carbon filtration
system (R. 227)
Kiley testified that emissions from the foam oven consisted
of 480 lbs./hr. of “moisture vapor” (R. 209, 229). When
questioned about the need for control equipment if the plant
emissions consisted solely of water vapor, Kiley testified that
Ozite had installed the control equipment because of a June 1971
complaint from the Village of Libertyville. He later confirmed
that the June 1971 complaint had actually been an order from
Libertyville to “cease and desist emitting odors” (R. 252).
Upon receiving the Village of Libertyville Complaint and
Order, Kiley testified that Ozite began an investigation to
determine if there were any odors, and “we set in motion a program
to investigate various sources, to see if the problem could be
corrected” (R. 230). Sassafras and wintergreen were used in an
effort to mask the odor hut continued complaints from “the towns-
people and the Village Board” led to the discontinuance of the
chemical masking program. Ozite also chang~edthe composition of
the foam in order to reduce the number of compounds required but
Kiley admitted the complaints continued.
After work by several odor control firms failed to indicate
any acceptable control scheme, Ozite employed Universal Oil
Products in October 1971 to determine the nature of the odor
problem and to make recommendations for a control system. Kiley
testified that the UOP report indicated there were chemicals in
the emissions but in concentrations too small to permit identification
(R. 238). UOP concluded that the plant emissions contained
combustible materials for which they recommended incineration
(R. 240)
Apparently still not satisfied, Ozite terminated its
dealings with UOP and brought in a plant engineer from Ozite’s
St. John, Quebec plant who, according to Kiley, was a ventilation
expert (R. 240). After the Canadian engineer determined the odor
problem could be solved by carbon filtration, a Montreal firm was
employed to design and install the carbon filtration system. This
12—345
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system was installed in December 1971 at a cost of $140,000
CR. 242). Kiley admitted that Ozite did not obtain an
installation permit from the Agency prior to installing the
carbon filtration system (R. 244).
The carbon filtration system was modified after several
months of operation by changing the type carbon used and in-
stalling additional capacity in the system. Kiley testified
that the additional filtration capacity was installed because
Ozite felt that the original installation was “under designed”
(R. 247). According to Kiley, an ozonator was installed in
June 1973 without Agency permit to “give ourselves a little
insurance
. . .
when the charcoal was getting to a low
efficiency
. .. .
the ozonator would pick up any residue, if
there were a~iy” (R. 253). Although the ozonator is still in
place, it is not being used because of mechanical problems (R. 254).
The record reviewed thus far shows that: 1) emissions
from the Ozite plant caused the Village of Libertyville to issue
an order requiring Ozite to “cease and desist emitting odors”;
2) Ozite employees were exposed to an ammonia type odor and a
smoky haze each time the foam oven malfunctioned and the doors
were opened; 3) union employees presented Ozite management with
a petition relating to conditions inside the plant created by
emissions from the foam oven; 4) the smoky ammonia smelling
haze within the plant during an oven malfunction was the same
material being emitted through the five “penthouses”; 5) smoky
ammonia smelling emissions continued until about December 1971
at which time Ozite installed a carbon filtration system without
Agency permit; and 6) Ozite enlarged the capacity of the carbon
filtration system and installed an ozonator in June 1973 without
an Agency permit.
The record contains substantial testimony of the impact of
this odor in the community.
One of the residents, Gordon C. Thomas, testified that he
has resided at his present location 1,000 ft. east of the plant
since 1957. Thomas first experienced “a strong odor of sulfur”
near his home on April 24, 1971 (R. 13, 54). He described the
odor as “obnoxious” and one that caused a “biting sensation on
the tip of my tongue and in my nostrils” (R. 16).
Thomas said the odor varied in strength but was present
every day when the wind was from the west CR. 21), From April
1971 to December 1971 Thomas experienced the odor on his property
about three times per week
CR.
67). On May
3,
1971 he was told
that the plant chemist “wished to reassure me that the odor was
not——was a harmless ammonia-type odor” CR. 56)
.
Thomas testified
12—346
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that a picnic in the summer of 1971 had to be relocated from
his property to a park in town when family and guests complained
about the obnoxious odor CR. 75). Odors during this period had
a “nauseating” effect on Thomas twice (R. 60).
In an effort to keep the odor from his home, Thomas placed
storm windows on the west and north sides of his house and on
occasion placed a shag carpet against the front door CR. 62, 63).
From December 1971 to August 1972, Thomas estimated he
experienced the odor on his property about three times per week
CR. 68) and from August 1972 to March 1973, twice a week CR. 44).
During this time Thomas was awakened by the odors at night on
two occasions CR. 44). He was forced to take his family and
leave his property four times “because of the strength of the
odor and the repulsiveness of the whole situation” CR. 45).
Thomas stated that he experienced the odor on “numerous” occasions
during May 1973, and about 20 times from June 1973 to August 1973,
during which time the odor duration was about 1 hour CR. 38).
Thomas testified that he had found the odor “very bothersome”
during mid-August 1973 while trying to paint the outside of his
house CR. 32). He added that he went into his house to avoid
the odor hut soon noticed the odor was coming underneath his
door CR. 36). Thomas also testified that the odor caused him
to suffer “mental anguish” CR. 26) and that he had never witnessed
the odor that it did not burn his nostrils CR. 34).
The Hearing Officer, who observed the witnesses and commented
on their credibility, reported to us that Thomas appeared more
influenced by his interest in the case than by his actual memory
of and recitation of facts. We give but little weight to Mr.
Thomas’ testimony.
Mabel R. Gunter, a 76 year old woman, has resided at the
same location on Butterfield Road for 54 years. She testified
that she has experienced odors from the Ozite plant “practically
ever since they put that factory in there” CR. 126). She
described the odor as “really gassey” and stated that it causes
her to “want to get away from It
. . .
you don’t want to smell it
anymore
- . .
you just have to go in the house” CR. 129)
.
The
odor keeps her “bottled in the house” (R. 128) and forces her to
stop working in her flower garden CR. 133). She testified that
she experienced the odor at least once per day during August and
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September, 1973. According to Mrs. Gunter, her relatives will
no longer visit her because of the odor CR. 140).
Mrs. Gunter complained to Ozite officials in 1972 but
noticed no improvement in the odor problem whatsoever CR. 137)
Mrs. Gunter admitted that she had picketed the Ozite facility since
1972 carrying a sign which read: “Pollution, Ozite real bad.
Help, help” CR. 141). She pickets the facility alone and nearly
every time she feels “halfway decent” CR. 154). She testified
that she intentionally turns the sign so that the words are
visible only to Ozite employees and not to anyone passing the
facility in anautomobile CR. 155). Mrs. Gunter was a credible
witness.
Lonnie D. Smith, a Lihertyville fireman, testified that he
first experienced an odor from the Ozite plant in April 1971. In
the summer of 1971 Smith and Gordon thomas weat
to the plant where
they talked to ~‘Mr.
Andrasik” about the odor. S~rith testified
that
Andrasik took the ~ w~ninto the plant and showed them the
~quipraent
that was “the primary cau~:e of any
odor”.
Andrasik
reportedly told the two men of Ozite’s plan to install odor control
equipment (R. 182). Approximately two months later Andrasik and
an Ozite engineer went to Smith’s residence to again discuss the
odor problem. Smith testified that both Ozite representatives
admitted detecting a “foreign odor” in front of the Gunter
residence. CR. 184). Smith described the odor as a “strong,
acidy smelling, nauseating type” odor that burned his nostrils
CR. 160). The odor .causes severe headaches for Smith, one of which
he described as severe enough to force him to leave his property
in 1971 (R. 177). Smith testified that~the odor forced him from
his property four or five times in 1971, twice in 1972 and two or
three times in 1973 CR. 174, 177). He detected odors from the
plant on about five occasions in August 1973 CR. 169) and four
times in September 1973. Smith has never noticed any other odors
on his property (R. 190) and has not noticed any decrease in odor
intensity since December 1971 CR. 189)
Phyllis Thomas, wife of Gordon Thomas, testified from her
own records that recent experiences of odor emission from the
Ozite plant had occurred on September 18, 21, 22, 26 and on
October 1, 4, 5, 9, 16, 19, 25, 1973. She stated that the odor
had been “strong, pungent, disagreeable” during the week of
October 15 through 19, 1973. A police officer was called to the
Thomas residence on the evening of October 16, 1973 when an odor
that started at 11:00 A.M. increased in intensity through the
-13—
afternoon.
Mrs. Thomas testified that the odor ceased about
1 hour after the
officer left their property.
Mrs. Thomas, who also first experienced the odor in April
1971 testified she had experienced the odor two or three times a week
from April 1971 through the year 1972 CR. 378, 379).
She stated
that the odor causes her
to feel a tightening in her chest. CR. 380)
She testified that the odor forced her family to leave their home
CR. 383), prevented her from performing outside activities CR. 380,
381)
,
forced her to retreat to the confines of her home ten times
in 1972 CR. 381), and has forced her family and guests inside the
home on one occasion in 1972 CR. 378). She stated that there had
only been two or three weeks of respite from the odors since 1971
CR. 373) and that she had detected no change in odor intensity
subsequent to the December 1971 installation of odor control
equipment (R. 385).
Allen H. Schertz, administrator for the Village of Libertyville
testified that he initially contacted the Ozite plant in 1971 when
he began receiving odor complaints from people living near the
plant. Schertz testified that he detected odor from the plant both
before CR. 301) and after installation of the odor control equipment,
with the most recent detection being in late spring or early summer
of 1973 CR. 302). He felt that the cease and desist order issued
by the Village played an important role in the subsequent odor
control system installation CR.
.
303). On the other hand, he
stated that he did not believe the control system had been effective
in eliminating the odor since he could still smell the odor
CR. 304) and the frequency of odor complaints had not diminished
CR. 314). Schertz testified the odor he detected was not the same
as the chemical added to natural gas (R. 318)
Stanley Ryba, a Libertyville police officer, testified that
he was the officer assigned to investigate the Thomas odor complaint
on October 16, 1973. He admitted detecting an odor on that
date that was “irritable and unpleasant” but which “did not hurt
in any way” CR. 329). Ryba testified that the wind was from the
west on that date and that there is nothing immediately west of the
Ozite plant “except for fields and grass and a nursery and things”
which could have caused the odor CR. 330). After experiencing the
odor on the Thomas property he drove “down a driveway to get down
into Ozite” where he could not detect the odor CR. 336). He
attributed this phenonema to the location of the plant which “sits
down off the road” CR. 336)
Ryba admitted that he never detected the odor from Ozite prior
to October 16, 1973 although he drove by the plant “a couple dozen
12— 34$
-
l4-
times a day” when he was responsible for patrolling the west
side of Libertyville. On at least three occasions he visited the
plant in response to emergencies without detecting any odor and he
also failed to detect an odor while “running radar” near the
plant. Ryba, started as a patrolman on April 23, 1973.
Kathleen Decker has hoarded her horse at the Thomas Boarding
Stables for the last three years and has ridden the horse from
three to five times per week throughout the period. She rides
her horse in the general area around the Ozite plant. She testified
that she had experienced odor on the average of 70 to 80 of the
times she had ridden in 1972 and about 70 of the time in 1973.
She described the odor as “what I would imagine sulfur dioxide
would smell like” CR. 464). The odor irritates her nose and
causes it to run. While riding she can smell the odor all around
the plant for a distance of about 1 mile depending on which direction
the wind is blowing (R. 475). She smelled the odor on October 16,
1973 at about 6:30 P.M. On that date she found the odor “Obnoxious”
and the worst she has smelled in the last three to four months
(R. 465)
Steven J. Rosenthal, an Agency engineer testified
that he was
familiar with the control equipment at the Ozite plant. He based
this familiarity on general knowledge of carbon absorption equipment,
a review of the installation permit application, a review of
Answers to Interrogatories and attendance at a conference with
Ozite personnel. Rosenthal stated that he had
visited the plant
in
July 1971 (prior to the installation of control equipment). He
testified that he had knowledge of the frequency of complaints
about the plant and general knowledge o~ “what is
occurring
with this particular situation” CR. 409). On this foundation,
Rosenthal testified that the Ozite carbon absorption system
was not effective CR. 412).
Rosenthal stated that Ozite could have installed an afterburner
to incinerate fumes at the plant. He testified that the afterburner
“is perhaps the most common and successfully used type of odor
control device” and would have cost Ozite about $60,000 to install
(R. 416, 417)
The Rosenthal reference to having reviewed an installation
permit application supports the testimony of William Kiley that
Ozite had applied for an installation permit although apparently
no permit was issued. Neither party in this case saw fit to intro-
duce a copy of the permit application.
-15-
To rebut the testimony of Agency witnesses, Ozite presented
testimony of five employees and an engineer who conducted an odor
survey. Ozite also claimed that there were other sources of odor
in the area. One of the employees, Lewis D. Martino, Ozite’s
Director of Technical Skrvice, testified that he had traced a
“most pungent odor” to a fuel gas storage depot operated by the
North Shore Gas Company at the intersection of Peterson Road
and Route 45. At this location which is about 1 mile northwest
of the Ozite plant, Martino testified that a mercaptan, probably
ethyl mercaptan, was added to the gas to identify the material.
He stated that the mercaptan additive carries for long distances
C ~.
605) and that he had detected the odor on Ozite property as
recently as “several weeks ago” CR. 601)
.
Martino indicated
that the mercaptan additive had an odor of concentrated garlic
and dead skunk which causes him to become nauseated when he
gets close to the source CR. 650). He stated that he had never
made any complaints to the gas company about the odor CR. 648).
Martino has also detected a “very pungent odor” at the Ozite
plant every two or three months which he attributed to a
hatchery and chicken farm located 3.7 miles south of the Ozite
plant CR. 608—610)
It was Martino who initiated the Ozite investigation for sources
of odor within the plant when complaints from neighbors first
started. He testified it was soon learned that it was impossible,
with present technicues, to determine the exact composition of
the plant emissions. Martino consulted with the chemist who
analyzed the emissions and concluded that some sulfur compounds
were in the exhaust gasses, probably disulfides CR. 593). He
described the material as having a “bad egg’~odor which, being
very volatile, would dissipate so quickly that it would not be
noticed at any ~‘reasonable”distance CR. 594)
In response to complaint from Gordon Thomas, Martino
visited the Thomas property before and after installation of
the odor control equipment. He testified that there had been
occasions when he detected the odor and some when he had not
CR. 624). On one visit in the summer of 1973 he detected what
he thought to be “a very slight emanation from our plant” CR. 626),
which he described as a “disulfide odor”. The source of the
disulfide odor, according to Martino, was the foam oven CR. 639).
Martino testified that he had worked with rubber vulcanization
for over 20 years without experiencing any physical sensations
from disulfide emissions, even at high concentrations CR. 643).
The Hearing Officer gave an adverse report on Martino’s credi-
bility as he had on the credibility of Mr. Thomas.
12—351
—16—
Other Ozite employees testified that odors from the foam
oven were detectable near the plant or in the parking lot, prior
to installation of the control equipment. Evelyn Burdick
noticed an “ammonia type” odor on the parking lot almost every
day (R. 498). The odorous materials caused her eyes to burn
and made breathing difficult for her. Jerry Pillard detected a
strong odor like “ammonia household cleaner” on the parking lot
before the control equipment was installed.
While the employees
can still detect occasional odors near the plant, they agreed
that the odor problem was significantly
reduced in the parking
lot after installation of the
control equipment.
Ozite’s final witness, Dr. William R. Staats, consulting
engineer for Polytechnic Inc.,
testified that he had conducted
an odor panel survey at the plant on September 25, 1973.
Prior
to the panel survey, Dr. Staats
visited the plant in order to
“make
a preliminary judgment as to the odor level”. Using a
“small dilution device” Dr. Staats
determined the odor level in
the exhaust stack to be less than 80 odor units per cubic foot
CR. 660)
For the odor panel, Dr. Staats
engaged the services of nine
women selected for him by a market
research agency. None had
any “acquaintance”
with Ozite (R. 662) and all were non—smokers
CR. 667). He
requested all applicants to avoid perfume or chewing
gum on the day of the test and he
checked to insure that none had
colds or other
respiratory ailments.
After being informed by an
Ozite
employee that the material
being processed would be representative of the type material
normally releasing the most odor, Dr. Staats withdrew samples
from the exhaust stack. He admitted de~ectingan “acrid, sulfur
odor” coming from the stack while collecting his samples (R. 680).
He diluted the samples to various concentrations and then tested
each panel member’s response to the samples. The odor panel
survey was conducted in a “training room”
in the Ozite adminis-
tration building. All members of the panel were in the same area
where they could observe and hear each other’s reactions and
comments CR. 689).
Plotting individual responses, Dr.
Staats concluded that the
plant was emitting 28 odor units per cubic foot CR. 674).
Based
on this conclusion, Dr. Staats testified
that the odor
exhausted
from the Ozite plant’s foam oven would not be
detectable beyond
the Ozite
plant boundary CR. 675).
From the testimony,
evidence and arguments comprising the
proceedings in this case the Board must now determine three
essential facts: 1) are contaminants being released from the
Ozite plant; 2) are any contaminants thus released, either alone
or in combination with contaminants from other sources, “in
12—352
—17—
sufficient
quantity and of such characteristics
and duration as
to
be injurious
to human, plant or animal life, to health or to
property or to unreasonably interfere with the enjoyment of life
or property”; and 3) if such proof is shown, has Ozite shown that
compliance would impose an arbitrary
or unreasonable hardship.
Without a doubt the record clearly shows that odorous
emissions from the Ozite
plant commenced with the installation
and operation of the foam oven.
Emissions from the foam oven
were vented to the atmosphere through five “penthouses”.
At times,
the emissions became so concentrated
near the oven that a smoky
haze was visible inside the plant.
The odorous haze caused
employees’ eyes to water and burn and made breathing difficult.
This was the material being emitted to the atmosphere.
Complaints, primarily from three of Ozite’s nearest neighbors,
also resulted in
a cease and
desist order being served on Ozite
by the Village
of
Libertyville.
These neighbors presented testi-
mony that the odor had caused their eyes and nostrils to burn,
had caused severe headaches, had caused some breathing difficulties,
and had forced them from their homes and property on several
occasions. They unanimously testified that the odor was coming
from the Ozite plant and that installation of control equipment
at the plant had not changed the frequency or intensity of the
odor. They have had to cancel outdoor events or move them to
another location. One witness, a 76 year old woman, testified
that she no longer has visitors at her home because of the odor
problem. This same witness testified she now pickets the plant
as often as she is able.
In response to the odor complaints Ozit~e installed a carbon
adsorption system in December 1971. The capacity was subsequently
doubled andthen an ozonator was installed in June 1973 in order
to provide additional “insurance”.
The odor control equipment apparently stemmed employee
complaints about odors inside the plant, but Ozite’s neighbors
have continued to complain.
Both employees and neighbors testified that the odor is stilL
detectable. The difference in their testimony is that none of the
employees except Lewis Martino can now detect the odor beyond plant
boundaries. The employees detect the odor on the “parking lot”,
“near the guard shack” or “near the general perimeter of the
building’.
Of particular importance in this proceeding was the testimony
of Dr. William Staats that Ozite was emitting 28 odor units per
cubic foot of exhausted air, a concentration which in his opinion
would not be detectable beyond the plant boundaries. The Agency
12—353
—18—
appeared concerned over the fact that all members of the odor
panel were seated in the same room which allowed each member
to observe the reaction of other members and overhear their
responses to Dr. Staats. Dr. Staats testimony that he pre-
sented each panel member “with a series of samples of various
dilutions, in random order” and his request to the panel
members that they not discuss their test experience with one
another until all tests were completed, shows that he considered
this possibility and attempted to reduce such influence as much
as possible. The odor survey room shown in Figure 81, Air
Pollution Engineering Manual, AP-40, 2nd Edition, page 932,
depicts several Ohairs in the “evaluation area” which would
indicate that panel members can be in the same room during the
test.
Dr. Staats states that he conducted the odor survey using
a technique described in an article by John L. Mills, et al.,
“Quantitative Odor Measurement”, Journal of the Air Pollution
Control Association, 13 467-75 (1963) October. He very carefully
described the exact procedure used for collecting the samples,
diluting the samples, and the method of presentation of the
samples to panel members. However, he did not say whether or
not the evaluation room was air conditioned and odor free, and
whether or not the room was devoid of drapes, rugs or other
odor adsorptive furnishing. Mills, et al., describes these
requirements as essential to any odor survey. However, these
apparent discrepancies are not sufficient to discredit the
entire Staats report.
We are not impressed by evidence showing the existance of
two other possible sources of odor in the area, a natural gas
storage area about I mile northwest of the plant and a chicken
hatchery about 3.7 miles to the south., Allen Schertz, Adminis-
trator for the Village of Libertyville, stated that the odor he
detected on the highway adjacent to the plant was not the same
odor as the “stuff they put in natural gas” CR. 318). The entire
record convinces us that the odors complained of did originate
at the Ozite plant.
The record proves that Ozite has caused air pollution in
violation of Section 9(a) of the Act and that such violations
have been continuous from April 1971 through at least the fall
of 1973. Installation of odor control equipment, even without
proper permits and in spite of evidence showing that odors con-
tinued to be emitted, will be considered to be a mitigating
factor in Ozite’s favor.
The fact that Ozite employees cannot smell the odor beyond
the plant boundary and the fact that the odor panel showed the
emission of only 28 odor units per cubic foot of air in the
12—354
—1 9’
exhaust gasses cannot rebut other testimony of the impact of
these odors in the neighborhood. The odor permeates the area,
causing “severe headaches and burning eyes and nostrils”.
Friends shy away from. visits because of the odor and outdoor
activities suffer or ‘are cancelled whenever a northwest wind
carries the odor to their property. We find that Ozite’s
neighbors are victims of air pollution caused by emissions
from the foam oven in the Ozite plant.
Having determined that Ozite is causing air pollution,
we
must refer to the record to determine
if adequate control
measures can be taken,
if
such measures would impose an arbi-
trary and unreasonable hardship on Ozite and exactly what Ozite
plans to do about abating the odors.
The carbon adsorption system has not abated the odor problem.
The ozonator is not operable an’d we are not told if Ozite plans
to make the device operable again. A four square foot vent
remains continuously open in the roof over the foam oven and
is a possible source of air pollution that has apparently not
been tested CR. 576). In spite of continuing complaints from
their neighbors Ozite does not contemplate any additional
measures to eliminate the odor problem CR. 272).
Testimony and evidence relating to the composition of the
exhaust gasses is virtually nonexistant in the record except for
some occasional references to a “disulfide” material, One
consulting firm recommended incineration as a means of odor
control. Agency Engineer Rosenthal testified that incineration
is probably the most common and. successfully used method of odor
control. He added that Ozite could have installed an incinerator
for about $60,000 as opposed to the $l40,0b0 expended for the
carbon adsorption system.
The Board acknowledges the successful employment of incin-
eration for odor control in many instances. However, further
evaluation of the entire control system is needed before deciding
on a final odor control program. This evaluation should especially
note that a sulfur compound may’ be one of the main components in
the exhaust gasses. Care should be taken that oxidation of the
sulfur compounds through incineration does not produce emissions
as odorous and possibly more injurious than those now being
discharged.
The record shows that Ozite has experienced difficulties
with the engineering aspects of its carbon systems particularly in
equipment sizing. It is possible that the present carbon system
can be more effective if modified. If that possibility is
explored and if the ozonator is repaired or replaced and if the
open vent over the foam oven is permanently sealed, Ozite might
be able to abate its odor problem.
12 —355
—20—
We will require Ozite to cause a thorough evaluation of
its present system to be performed by experts.
Based on this
evaluation, Ozite shall submit a proposed compliance
plan to
the Agency. Ozite shall also be required to
permanently seal
the open vent over the foam oven or show cause why the vent
should not be sealed. We shall require that
such compliance
plan be designed to abate the odor problem within six months.
In summary, it is the finding of the’ Pollution Control
Board that Ozite is guilty of all charges specified in the
Amended Complaint. After thoroughly considering the mitigating
factors in Ozite’s favor, we believe that a monetary penalty
consisting of a $2,000 fine for the air pollution violation
and a $1,000 fine for the permit violations is appropriate.
This Opinion constitutes the Board’s findings of fact
and conclusions of law.
ORDER
It is the Order of the Pollution Control Board that:
1. Ozite Corporation shall pay to the State of
Illinois by June 24, 1974 the sum of $3,000
as a penalty for the violations found in this
proceeding. Penalty payment by certified check
or money order payable to the State of Illinois
shall be made to: Fiscal Services Division,
Illinois EPA, 2200 Churchill Road, Springfield,
Illinois 62706.
2, Respondent shall apply for and obtain all
necessary operating permits for its Libertyville
plant.
3. Respondent shall cause a thorough evaluation of
its present odor control system to be performed
within 30 days of the date of this Order. Such
evaluation shall include but is not limited to
a thorough investigation of the present carbon
adsorption system by an expert(s) in the field
of odor control, consideration of the
possible replacement of the carbon system with
a more effective control system, and a determination
of the need for repair or replacement of the ozonator.
Respondent shall provide the Environmental Protection
Agency with a copy of the evaluation report
within
45 days from the date of this Order.
—21—
4, Respondent shall within 30 days close and
permanently seal the atmospheric vent over
the foam oven or show the Board reasonable
cause why the vent should not be sealed.
If the vent must remain open, Respondent shall
insure that all contaminants normally exhausted
through that vent are properly treated so as
not to cause odorous emissions.
5. Based on the evaluation report required in
Part 3 above, Respondent shall submit a
compliance plan to the Agency within 60 days of
the date of this Order.
Such compliance plan
shall show that Respondent will achieve
compliance with Section 9(a) within six months
of the date of this Order.
6. Respondent shall
submit bi-monthly progress
reports to
the Environmental
Protection Agency.
Said reports shall commence on
July 1, 1974 and
shall provide details of
Respondent’s progress
toward completion of the evaluation report and
compliance plan. Each report shall also contain
a list of complaints received relative to odorous
emissions, probable cause for the odor or
complaint and measures taken in response to each
complaint.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control
Board, her~by certify the
above Opinion and Order wa~adopted
this
~3t~
day of
________,
1974 by a vote of ~ toO
c~L~
12
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351