ILLINOIS POLLUTION CONTROL BOARD
February 14,
1973
ENVIRONMENTAL PROTECTION AGENCY
#72-160
v.
KALUZNY BROS.,
INC.,
a corporation
)
NICHOLAS G. DOZORYST II, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF ENVIRONMENTAL PROTECTION AGENCY
JOHN J. McGARRY,
OF DUNN,
STEFANICH, McGARRY
& KENNEDY, APPEARED
ON BEHALF OF KALUZNY BROTHERS,
INC.
OPINION AND ORDER OF THE BOARD
(BY SAMUEL T.
LAWTON,
JR.):
Complaint was filed against Respondent,
owner and operator of
a facility for the inedible rendering of animal scrap, bone and
grease,
located on Mound Road in the City of Joliet.
The complaint
alleges that since July
1,
1970, Respondent operated the facility
so as to cause air pollution,
in violation of Section
9(a)
of the
Environmental Protection Act and that on or about January
8,
1972,
Respondent installed a new shell and tube condenser having 977
square feet of surface area, which equipment was capable of causing
air pollution,
or was designed to prevent it, and was new equipment
as defined in the relevant Regulation.
The Agency alleges that the installation aforesaid was done
without a permit and violated Rule 3-2.110 of the Rules and Regula-
tions Governing the Control of Air Pollution and Section 9(b) of
the Act.
Answer was filed by the Respondent admitting the operation
of the facility, but denying the causing of air pollution or the
violation of the Regulation requiring the obtaining of a permit for
the installation made.
Hearing was held on the complaint and answer on November 27,
1972 in Joliet.
We find the Respondent to have caused air pollution
and to have made the condenser installation without the necessary
permit.
We assess a penalty in the amount of $2,000
for the vio-
lations found, direct Respondent to cease and desist the violations
of the relevant Rules and statutory provisions, and further direct
the submission of a plan to assure the abatement of odors within
60
days from the date of this Opinion.
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79
There is no major disagreement on the facts of the case.
Respondent’s operation consists of the rendering of meat scraps
and bones
in the manner characteristic of operations of this
kind.
The raw material is ground in
a large grinder and then placed in
three enclosed cookers located inside the plant.
Gases and vapors
from the cooking process are vented to
a shell and tube condenser
where the condensable gases are condensed to water and disposed of
in the plant’s sewage system.
The non—condensable gases are then
drawn from the top of the condenser by a vacuum pump and a chlorine
solution injected to eliminate the odor by oxidation.
The non-
condensable materials are then pumped to the bottom of a six—foot
tank and diffused through six feet of water.
The condenser itself
is a cylindrical shell containing a substantial number of tubes
through which the steam and vapor to be condensed passes.
The
exterior of the tubes
is cooled by water which causes the condensa-
tio,n and ultimate disposal
to
the sewer system.
Measurement of the
size of the condenser is
in the square footage of the tubes involved.
In 1966,
a tube condenser was installed containing approximately
550 square feet of condensing surface.
In the summer of 1971,
this unit ceased to operate adequately as
a consequence of lime
deposit forming on the tubes of the condenser due to the hardness
of the water.
The formation of the deposit prevented the cooling
water from coming in contact with the tubes and, accordingly, the
cooling effect of the water was nullified and the steam was not
condensed into liquid form.
A new condenser was purchased having
approximately 975 square feet of surface area.
New heads were
fabricated to enable installation of this unit.
Subsequent to in-
stallation of the new condenser and as a consequence of inspection
made by Agency personnel,
the Agency advised the Respondent that
a permit would be needed in that the Agency construed the new con-
denser as
“new equipment” and one that either caused or abated air
pollution necessitating compliance with Rule 3-2.110.
Application
was made to the Agency, but denied, the Agency permit personnel ad-
vising Respondent that it would not approve the installation without
the addition of an afterburner.
Evidently,
the Respondent made no
further effort to pursue the matter of permits, but withdrew the
application in the belief that the new condenser was not “new equip-
ment” as defined in the Regulations, and that accordingly,
no permit
was needed for the installation.
We believe the Respondent clearly wrong in its interpretation
of the Regulations and hold that the new condenser was new equipment
as defined in the Act and requires the appropriate permit.
Rule
3—2.110 provides;
“A. permit shall be required from the Technical Secretary
for installation or construction of new equipment capa-
ble of emitting air contaminants to the atmosphere and
any new equipment intended for eliminating, reducing or
controlling emission of air contaminants.”
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7—80
New equipment is defined as
follows:
“a.
Equipment,
the design of which was less than 50
completed on April
15,
1967.
b.
Equipment which
is altered or modified such
that
the amount of air contaminant emissions
is increased
15
or more.”
Respondent advances three theories under which it would not be
covered by the above Regulations.
It contends first that with
respect to definition
(b)
the modification does not increase air
contaminant emissions
15
or more.
While this may
be
true,
it
loses sight of the other definition of new equipment, which
is
equipment less than 50
completed on April
15,
1967.
Next,
Rc~pon—
dent contends that this
is not a replacement of new equipment but
rather maintenance of existing equipment,
and lastly,
that the
totality of the equipment involved,narnely,the cooker,condenser,
vacuum pump,injecter of chlorine solrtion and bubbling devices,
all constitute
the”equipment.” We cani ~t accept these theories.
Were we to do so,
the totality of all ~
‘ipment in any plant would
be considered as a single piece of equi~
~t and no installation
with respect to any portion
of
it, wouli
‘onstitute the installation
of new equipment.
While all elements are interrelated, we believe that the new
condenser
is of
a sufficient importarn’e and magnitude to be consi-
dered separately,
and, accordingly,
view it
as a single integrated
piece of equipment.
The increase in size over the previous unit,
its special construction and the need for special fittings
to adapt
it, all lend support to this view. Accordingly, we find that the new
condenser
is new equipment for which a permit is needed under the
relevant provisions of the Rules and the Act.
We further find that the action of the Agency in denying the
permit because of the absence of an afterburner, was valid.
Undis-
puted testimony brought out at the hearing indicates that even when
the condenser is operating properly,
it achieves only
a 50
reduction
in odors, whereas with the presence of an afterburner,
99
efficiency
can be achieved. (R.
52—61)
Section
39 of the Envirox?mental Protection Act mandates the
Agency to issue a permit
onl~j’when there is proof
by; the applicant
that the facility involved will not cause violation of the Act or
the Regulations thereunder.
It was well within the province of the
Agency to make a determination that the condenser alone was not
adequate to prevent air pollution as, indeed, the facts of this
case evidence.
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7—81
Further,
it was not incumbent upon the Respondent to make a
unilateral determination that the permit was not needed or that
the conditions were improper.
If conditions had been imposed
which the Respondent felt unwarranted, appeals should have been taken
to this Board in an appropriate procedure.
Respondent acts at its
own risk when it proceeds on the assumption that no permit was neces-
sary.
We shall direct Respondent to obtain the necessary permits
for
the operation of its air pollution abatement equipment and hold
it to have been in violation for failing to have done so in the
past.
The evidence likewise supports the allegations with respect
to the causing of air pollution.
Respondent’s operation
is con-
ducted in a highly industrialized area.
It processes approximately
one million pounds of material a week collected from supermarkets,
locker rooms, residences and slaughterhouses.
The end products
of the operation are tallow, grease and solid protein.
In the
immediate vicinity of the Respondent’s operation are the Johns-
Manville Company, Caterpillar Tractor,
a large chemical plant and
an electrical generating station of Commonwealth Edison.
Also in
the vicinity of Respondent’s operation are five garbage dumps,
three
blacktop companies,
a brickyard and a
tire re-capping facility. (R158,Rs.X1)
Notwithstanding the foregoing competitive odor-producing enterprises
in the vicinity of Respondent’s plant,
it is evident from the record
that Respondent’s odor emissions are detectable, burdensome and
constitute air pollution as defined in the statute.
Howard Martinson of the Joliet Police Department equated the
odor to that of a person who had been burned to death
(R.
5). He
identified the plant as the source of the odor,
determined by inspec-
tion.
His home is located north-northeast of Respondent’s plant
and the odors were most noticeable during periods of high humidity
and when the wind direction was from south to north.
Odors were more
predominant during summer months and particularly noticeable during
evening hours.
Odors were detected during the summer of 1972, pre-
cluding the use of the witness’ yard during the evening periods.
While odors from other sources were occasionally detected,
this
witness was able to distinguish the odor emanating from Respondent’s
plant.
Joseph Pillion testified that he lived north and slightly east
of Respondent’s plant and that the odor he experienced was similar
to that of the cooking of rancid meat.
He likewise had the ability
to
detect
the
Respondent’s
odors
from
other
industries
in
the
area
such
as
the
odors
from
the
chemical
and
power
plants
and
the
nearby
garbage
dumps.
The
odor
was
particularly
noticeable
when
the
wind
blew
from
the
south
and
southwest.
Odors
were
experienced
during
both
1971
and
1972,
particularly
in
the
summers,
during
periods
of
high
humidity
and
most
often
in
the
evenings.
The
odor
affected
his
ability
to
sleep
with
open
windows,
and
on
some
occasions,
forced.
him
to
leave
his
home
and
was
a
source
of
embarrassment when he enter-
tained company
CR.
20),
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—
82
Dorothy Piunti testified that the odor she experienced was simi-
lar to the cooking of spoiled pork.
She lives approximately two miles
north and east of the Respondent’s facility and could distinguish the
odors caused by Respondent from those emanating from other sources in
the area.
She experienced odors ranging from the spring of 1971
to the
fall of 1972.
As with previous witnesses,
she testified that the
odors were most noticeable during warm weather, during periods of high
humidity during evening hours and when the wind was blowing from the
south or southwest.
She testified that the odor precluded use of
her yard for outdoor activities and that the odor permeated her home.
She stated that the odor had caused her nausea and headaches
(R.32).
Robert L. Murray, Director of the Will County Health Department,
testified to his experience in.endeavoring to locate the source of
odor complaints during September of 1971 and tracing it to Respondent’s
operation
(R.32).
Steven Rosenthal,
an Engineer of the Environmental Protection Agency,
testified that his in-plant inspection
indicated
that
the
venting
of
non-condensible gases
into the atmosphere produced a major source of
odor.
His inspection indicated that major sources of odor from Respon-
dent’s operation were inadequate control of gases from
cooking
odors,
emissions from screw processes,and from the perforated pans which re-
ceived materials from the cookers,
and poor housekeeping as a result of
which material was collected on the floor and elsewhere
(R.
50).
He
testified that no more than a 50
odor abatement efficiency could be
expected from the use of the condenser alone and that scrubbing equip-
ment
or
afterburners
were
necessary
to
achieve
odor
reduction
efficiencies
between
95
and
99.
(R.52-64).
Sharon
Sherrell,
a
witness introduced by complainant, while not re-
futing the emission of odors from Respondent’s
facility, stated that
other sources of odors were equally or more objectionable.
Wilbur Dronen,
Personnel Services Manager of Caterpillar Tractor Company,
testified to
complaints he had received as a result of Respondent’s operation and
odor emissions
(R.
102).
Fred D.
Bennett, while testifying that the emissions of Respondent
were “just good, healthy odors”
(R.
120) sold Respondent the land on
which the plant is built and still owns property in the vicinity of the
plant
(R.
117).
Charles
E.
Lowe,
an inspector of rendering plants for
the Illinois Department of Agriculture, testified that Respondent’s
housekeeping operations were highly satisfactory and that,
in his judge-
ment,
there was no odor problem
(R.
146)
.
He had been in the rendering
business for 30 years prior to his present employment
(R.
148)
We believe the Agency has adequately proven its case both as to
the need for a permit for the installation of the condenser and
the causing of air pollution as defined in the Act.
We find Respon-
dent to have violated Rule 3-2.110 of the Rules and Regulations
Governing the Control of Air Pollution and Section
9(b)
of the
Environmental Protection Act, both of which require the obtaining
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83
of
a
permit
from
the
Agency
for
the
installation
of
new
equipment,
contributing
to
or
designed
to
prevent
air
pollution.
We
find
that
the
new
condenser
installed
is
new
equipment
within
the
purview
of the relevant Regulation.
We
further
find
that
Respondent’s
operation has caused air pollution as defined in the Act in that the
emissions
found have unreasonably interfered with the enjoyment of
life of the persons residing in the vicinity of the plant and con-
stitute
a violation of Section
9 (a)
.
We find this notwithstanding
the presence of other odors which undoubtedly have a similar effect
on the community.
A 9(a) violation is sufficiently established if
the contaminants
emitted, either alone or in combination with other
sources,
create this result.
We direct the Respondent to cease and desist its odor emissions
and to obtain
a permit for the operation of its odor abatement
facilities.
We impose
a penalty in the amount of
$2,000 for the
violations
of
the
Act
and
Regulations
found
to
have
been
committed
as
set
forth
above.
This
opinion
constitutes
the
findings
of
fact
and
conclusions
of
law of the Board.
Mr. Dumelle will file a separate concurring opinion.
IT
IS THE ORDER of the Pollution Control Board:
1.
Penalty
in the amount of
$2,000
is assessed against Kaluzny
Bros.,
Inc. for violation of Rule 3-2.110 of the Rules and Regulations
Governing
the
Control
of
Air
Pollution
and
Section
9(b)
of
the
Environ-
mental Protection Act in failing to obtain a permit for the installa-
tion of
its condenser and for causing air pollution in violation of
Section
9(a)
of the Act.
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 Drive, Springfield,
Illinois
62706.
2.
Within 60 days from the date of this
order, Respondent shall
cease and desist the causing of odor emissions so as to cause air
pollution as defined in the Environmental Protection Act and shall,
prior to said date,
apply for a permit for the operation
of
its
odor
abatement
equipment
including
the
condenser
heretofore
installed.
I, Christan Moffett, Clerk of the Illinois Pollution Control
Boa,rd,
certify that the above Opinion and Order was adopted on the
~4~\
day of February,
1973,
by a vote of
3
to
~
*
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84