ILLINOIS POLLUTION CONTROL BOARD
May
14,
1981
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 75—112
THE METROPOLITAN SANITARY DISTRICT
OF
GREATER
CHICAGO,
Respondent.
PATRICK
J.
CHESLEY
AND
STEPHEN
GROSSMARK,
ASSISTANT
ATTORNEYS
GENERAL,
APPEARED
ON
BEHALF
OF
THE
COMPLAINANT.
ALLEN
S.
LAVIN,
JOHN
C.
PARKHURST
AND
FRANKLIN
L.
RENNER
APPEARED
ON
BEHALF
OF
THE
RESPONDENT.
OPINION
~ND
ORDER
OF
THE
BOARD
(by
J.
D.
Dumelle):
This enforcement action was filed by the Illinois
F~nvironmentalProtection Agency
(Agency) against the Metropolitan
Sanitary District
(MSD) on March
10,
1975.
The Agency alleges
that MSD violated Sections 9(a)
and 12(b)
of the Environmental
Protection Act
(ACT) on numerous dates between March
7,
1974 and
March
7,
1975.
From July of
1977 through April of 1979,
63 day3
of hearings were held,
75 witnesses testified,
over 150 exhibits
were admitted and nearly 10,000 pages of hearing transcript were
generated.
In short,
the record in this case is immense,
and, as
such,
is similar to MSD’s Fulton County project which is
the subject matter of the complaint.
During
the
relevant
time period this project consisted of 10,400 acres
(Resp.
Ex.
26).
Sludge was barged down the Illinois River to Liverpool,
Illinois, where it was unloaded and pumped to holding basins
#1 and
#2 via an eleven—mile pipeline.
Holding basins #3A
and
#313
contained supernatant drawn off from the other basins.
The total exposed surface area of the 4 basins was approximately
200 acres.
The sludge was pumped to the thirty—one fields used for
application during that year.
High pressure spraying on
1436.1 acres accounted for 83.8
of the 738,193 tons of sludge
applied during the Complaint period
(Jt.
Ex.
9).
Under this
method of application the sludge
is sprayed several hundred feet
through the air
(R.5985).
The remainder of the sludge was appUe~
by direct incorporation into the soil.
41—373
—2—
The Agency alleges that as
a result of these applications
of sludge MSD has caused air pollution.
The Agency
further
alleges that MSD has operated its Fulton County Project
in
violation of Standard Condition
#5 of Permit No.
1974~’)B—444—OP
by causing water pollution.
Given the immense record in this case and
the
fact
that
the proceeding
is now over
6 years
old,
it is reasonable to
expect that the issues are complex and difficult
to resolve, a~
that the Board’s resolution of the matter will be of
substantial
import, especially to MSD and the citizens of Fulton County.
However,
such is not the case.
MSD
seeks vindication and
approbation for not destroying
the life oE Fulton County.
The Agency seeks
a $10,000 penalty and a cease and desist
order for odors caused by MSD
6 or
7 years ago and which
have,
apparently,
long since diminished.
$10,000 probably
would not pay for the preparation of one—third of the transcript-
in this proceeding
(not that the Board bases
its penalties
on such factors),
This case
is
an
embarrassment of
lenqt’~i.
MSD does not contend that sludge is always an odorless
product or that sludge odors have not been carried beyond its
Fulton County property
(Resp.
Brief p.14).
Agency witnesses
confirmed this.
The Agency called 34 citizens to testify regarding the
odors.
Lyle Ray, the Agency’s prinicipal
field investigator
of MSD’s project, noticed odors on several occasions
(R.10,
13—14,
48—67 on Nov.
3,
1977;
122—125,
219—220 on Nov.
4,
1977,
among others).
Investigators from the Fulton County
Health Department,
(FCHD)
also testified to the existence of
odors
(R.232—233,
237—238 on Nov.
4,
1977;
8270 and 8275).
283 complaints were made to FCHD,
193 were investigated and
94
of those investigations resulted in detection of
a sludge
odor
(Comp.
Ex.
30).
Even witnesses called by MSD admitted
the existence of an odor
(R.
5966—5968,
5970,
5983—5984,
6001,
7773—7778,
and Comp.
Ex’s
40,
48 and 65—68).
The question here, then,
is simply one of degree:
were
the odors “in sufficient quantities and of
such characteristics
and duration as
to he injurious to human... health, or to
unreasonably interfere with the enjoyment of
life or property”
(Section 3(b)
of the Act.)?
MSD,
sunsurprisingly, contends that
they
were
not.
In
support
of
that
position
MSD
first
cites
the
hearing
officer’s assessment of credibility of witnesses
(filed July
26,
1979) wherein it states that
“with rare exceptions,
there
were only subtle nuances in the differences
in their
the
Agency witnessess
patent militancy against the Respondent’s
project.”
Further,
“it is impossible to find in their testirn~ny
honest objectivity
of the subject matter of the issues,”
arid
they were said to have “portrayed an almost contrived antaqoni ~m
toward the project.”
41—374
—3—
MSD then presents a lengthy list of factors which support
the lack of credibility:
a.
The family connection
(a number of
the witnesses
were related);
b.
The church connection
(half of the witnesses aLtende’~
the same church);
c.
The
law suit connection
(several witnesses are also
involved in a circuit court case against MSD);
d.
The FCCBHE connection
(about 2/3 of the witnesses
belonged
to this environmental
group which was
anti—MSD); and
e.
The psychology of
fear
(all witnesses expressed
some concern about MSD other than odors).
Thus,
MSD argues,
any statements made by these citizen
witnesses should be viewed with suspicion.
On the other hand, the Board cannot simply ignore the
voluminous testimony concerning the odors.
The hearing officer’s
statement strikes at the objectivity of the witnesses.
It
does not say that
no part of their testimony is to be believed.
Further,
the factors listed by MSD are not particularly
compelling, especially since the Board is uninformed
as to
how many people in the area surrounding
the project do not fall
into
one
or
more
of
the
categories
listed.
The
Board
certainly
must
hold
that
a
violation
can
be
found
where
the
corrtplainin.7
witnesses are related, attend the same church,
arc angry,
are
worried,
and have been active in opposition to the source of
pollution.
Thus, the citizen testimony will he considered,
with a somewhat skeptical eye.
What,
then, did these citizens have to say?
For one thing,
they all characterized the odors as objectionable.
Most agreed
that the odors smelled musty,
oily or ammonia-like.
These
observations correspond with those
of Lyle Ray,
who testified that
discing operations produced a musty, petroleum odor while spraying
resulted in an ammonia—urine type odor
(p.l5 on Nov.
4,
1977;
p.15).
MSD argues that several other comparisons that were used to
describe the odor do not connote particular unpleasantness
(e.g.
like bronze tableware that needs cleaning,
or stale soap suds or
permanent wave solution),
but it
is common knowledge that even
ordinarily pleasant smells can become objectionable
if they are
too frequent,
too strong,
or
last too long.
There is considerable testimony concerning the frequency
of the odors.
This testimony includes general recollection,
“Hot—line” complaints and calendar notations.
Many of the specifics
were lacking, but that
is not particularly surprising given
the age of
the proceeding.
41—375
—4—
On some points,
though, all witnesses agreed.
The odors were
not constant.
They came when the wind blew from the direction
of MSD’s operation,
and they usually came during or after
spraying.
A summary of testimony concerning frequency is given
below:
Witness
Entries
Complaints
Other
Total
Melba Ripper
33
9
42
Betty Hardesty
1
3
4
Virginia Bordwine
23
23
Tom Downs
24
26
50
Lydia Downs
6
5
11
Martha Strode
8
8
Dale Vaughn
12
12
Helen Jameson
1
1
Doris Parish
2
2
Terry Beam
1
2
3
George Spyres
8
3
11
Louise Freiheit
6
6
Leatha Vegich
1
1
George Becker
6—8
6—8
Victoria Downs
16
14
30
Rosetta Vaughn
14
27
41
Charles Fulton
4
4
Robert Branchfield
6
6
Marian Del Senno
7
7
David Cape
9
9
John Huff
2—5
2—5
Lynn
Logan
2
2
Dorothy Francis
2
2
Nancy Bowers
1
1
Mary Lee Taff
0—5
Sev/Wk.
0—5+
John Jameson
1
1
Meredith Ellsworth
2—3
2—3
Alice Hansberger
5—6
5—6
Imo Randolf
1
1
Lawrence Ufkin
5—12
5—12
Cecil Grove
10—12
10—12
Peter
Ferre
2
2
Total
126—127
154—166
30—38+
310—331÷
These figures warrant some discussion.
The “Total”
certainly should not be taken to mean that during the
1-year
Complaint period that there were 310-331+ times when odors
emanating from MSD’s project were
a problem.
First, some of
the categories may well overlap:
e.g., calendar entries
may also indicate days when complaints were made.
Secondly,
many witnesses did not keep calendar notations and may not
have complained via the Hot-line or specifically testified
concerning them
(which would appear under the “Other” heading).
41—376
—5—
What is clear, however, is that these are not a few,
isolated incidents.
On numerous occasions
a large number of
people were sufficiently bothered by the odors to take some
action to remember or complain about them.
The testimony concerning the duration of the odor also
suffers from a lack of specificity,
but,
again,
some general
conclusions can be reached.
Some of the witnesses testified
to quite extended periods of odor.
Tom Downs testified that
once the odor “kept them awake all night.”
He also testified
to the presence of odors for the entire
3 or
4 days of the
Canton Friendship Festival.
Martha Strode testified that odors
were detectable at her home the entire Memorial Day weekend.
However, more often than not, when the odors became objectionable,
the witnesses would either leave their homes or retreat indoors,
shut up the house and turn on the air conditioning.
Therefore,
the duration testimony is somewhat sparse.
Other evidence of duration results from observations
of Hot-line investigators.
Generally,
the citizens testified
that it took the investigators a long time to get to their
homes after a complaint was made (most said it was often up
to an hour or more, though the investigation reports show
an average time-lapse of
30 minutes; Comp.
Ex.
30).
Peggy
Faulk testified that the quickest response time was 20 minutes
and the longest time was
45 minutes
(R.
8299—8300).
From this,
MSD argues that, based upon the odors having in most circumstances
diminished or disappeared by the time the investigators arrived,
the duration was generally 30 minutes or less.
However, three
possibly inaccurate assumptions must be made to reach this
conclusion:
First, that the odor testified to was detected
when it first arose;
Second, that the Hot-line complaints were
made when the odors were first detected;
and third, that the
reports, rather than the citizen testimony were accurate.
Another piece of evidence bearing on this issue is the
testing procedure
(R.
8263—8266) which resulted in 6 “matched”
samples (matching MSD generated odors)
indicating persistence
of MSD odors over a one-hour period.
MSD argues that this is
the only reliable evidence of duration and that
6 one—hour
episodes during the summer
of 1974
are insufficient to prove
air pollution.
The Board does not agree.
What has been established
is
a minimum figure which in addition to other competent testir~1ony
indicates that odors persisted for extended time periods
on numerous occasions during the complaint period.
The Board now reaches the heart of this case:
whether
the MSD-generated odors were such as to cause human injury or
to unreasonably interfere with the enjoyment of life or property
(Sections 9(a) and 3(b)
of the Act).
41—377
—6—
The facts in this case are quite similar to those
in the
case of EPA v.
Arnold May,
et al.,
12 PCB
321,
PCI3
73—109
(May 23,
1974).
The adverse health effects testified to in
the MSD case include nausea,
loss of appetite,
irritation to
eyes, nose and throat, headaches,
difficulty
in breathing and
sleeping,
a bad taste in the mouth and simply feeling upset
(see Comp. Brief p.16).
More than one witness testified to each
of
these and as many as 23 found the odors
upsetting.
The only
real difference between these complaints and those in Arnold
is that here no one actually vomited.
In that case, both
injury and unreasonable interference with enjoyment of life
or property were
found.
MSD argues that these are simply “discomforts” rather
than injuries, citing People v.
Decatur Sanitary District,
25PC8263,
PCB 76—181
(May
26,
1977).
While such terminology
is used in that case,
a stipulated violation of Section 9(a)
of the Act was found without differentiating between injury
or unreasonable
interference.
That
case,
therefore,
gives
little,
if any, support for MSD’s position.
MSD also argues that the complaints
are
subjective and
unsubtantiated and cites Draper and Kramer
v.
PCB,
40
Ill.
App.
3d
918,
353 N.E.2d 106, as support for the proposition
that such complaints must be supported by scientific evidence.
Once again,
the case cited fails
to support the proposition
that such complaints must be supported by scientific evidence.
Once again,
the case cited
fails
to support
the
proposition
advanced.
In Draper, the Court stated that “we believe
in
this case...
such evidence was necessary”
(353 N.E.2d 109,
emphasis added).
As
MSD
notes in its Brief:
“Odor perceptio~is
are sensory and not scientific.
The human nose is not an
instrument that can be calibrated.
It gives out no measurement~
or readings or print—outs”
(p.l8).
This is not the same sort
of case as Draper.
There the Court questioned whether the
alleged reactions actually resulted from the contaminant alleq~
(especially since the reactions continued lon9 after
the
comtaminant ceased to be used).
Here,
there is no serious
question raised as to the cause of the reactions;
here
the
question,
as
noted
earlier,
is
only
one
of
the
degree of the
reactions.
Since scientific testimony could not supply that
in this case,
Draper is inapplicable.
The Board finds that this case
is not distinguishable
from Arnold May simply because
no one vomited.
Sore throats,
red eyes,
irritated noses,
feelings of nausea and interference
with sleep are injuries to humans.
Furthermore,
under the
circumstances of this case,
they also prove an unreasonale
interference with the enjoyment of life or property.
That
the interference was unreasonable
is substantiated by an
examination of the factors listed in Section 33(c)
of the
Act..
Section 33(c)(1) first directs the Board to examine the
character and degree of injury to or interference with the
general welfare.
The Board finds that both have been proven,
but that the hearing officer’s statement of credibility,
4 1—3 78
—7—
the testimony of resident witnesses on behalf of MSD, who did
not
find
the
odors
to
be
offensive,
the
testimony
of
Lyle
Ray
and the Hot-line investigation reports which characterize most
of the odors detected as
slight,
the degree of interference does
not appear to be great.
There is no indication of long—term injury
to Fulton County
or its residents;
people have not moved out
because of the odors and there has been no great disruption
in their
lives.
On the other hand,
the testimony makes
it clear
that the odors were something more than a trifling inconvenience
as they are characterized by MSD.
Second,
Section 33(c)(2) directs the Board to consider
the social and economic value of the pollution source.
The
Board does not question the social
or economic value of the
Fulton County project when operated in a proper manner.
However,
both parties agree that the application of sludge to land can
cause odor problems.
Therefore,
it was incumbent upon MSD
to take all reasonable steps to minimize or eliminate that
odor.
This
it has not done,
and that failure reduces the
social value of the project.
Third, the Fulton County project is well-suited to its
location.
The
area
surrounding
the
project
is
predominantly
rural
in nature except
for small villages on the south and
southeast.
The nearest concentration of homes to the west
of
the
project is about
4 miles and to the north about
2 miles.
The City of Canton is about four miles
to the northeast of
the major portion of the project and about 1½ miles from an
extension of MSD’s holdings.
In short,
the project is
located
in a sparsely populated area
(See Comp.
Ex.
6).
Further,
the project is located in what was a strip mining
area,
and
the application of sludge to that land, especially when incorporated
by discing, helps to reclaim agricultural
land.
MSD raised
crops on 3,941 acres of its Fulton County property in 1978
(See Resp.
Ex.
52).
On the other hand,
these considerations suffer from the
same limitations as those discussed under Section 33(c)(2),
above.
Since many of the complaining witnesses live within
1½ miles of some application area,
odors should have been kept
to a minimum.
This
is especially true in a case such as this
in which the majority of the citizen witnesses had lived in
the area prior to the advent of the MSD project.
The final Section 33(c)
consideration concerns the technical
practicability and economic reasonableness of reducing or
eliminating the odors;
in short,
whether the emissions were
reasonable.
The Board finds that the emissions were not reasonable
in that techniques
for reducing the odor were both available
and affordable.
By eliminating those conditions which tend
to increase odor potential,
it
is possible to utilize sludge
without polluting the air to
an
unreasonable degree.
41—379
—8—
Much of the sludge applied during
the complaint period
was Imhoff
sludge,
a sludge which is
not
fully digested and
has known odor potential
(R.7197).
In March of 1974,
15
of the sludge in Holding Basin #2 was Imhoff sludge,
and during
the application season of
1974,
only sludge
from
that ~asin
was used for land application
(R.5791,
7208—7210,
and Comp.
Ex.
65).
Other, more fully digested sludges, which have
a
lesser odor potential, were available on—site.
Secondly, during the complaint period the principal means
of application was travelling sprinklers
(R.5785).
These
propelled sludge a distance of 200 feet through the air ~nd
to a height of
50 or
60 feet
(R.
5985).
Clearly, the greater
the surface area of the sludge exposed to the atmospehre,
the greater the potential
for odor,
and the more likely that
the odors are to be carried off-site
(R.4796 and 5972).
MSD itself admits that this method of application has more
odor potential than incorporation
(R.5969,
5975,
7231,
8032,
8479 and 8505).
This
is confirmed by testimony associating
more sludge odors with spraying than other MSD practices
(R.’D20,
1967,
2683,
5544,
6416,
6429 and 6542).
Not only was there testimony that cessation of
the
use
of Imhoff sludge and spraying is technically practicable and
economically reasonable,
but
MSD has already done
so.
in
1974, MSD applied 85
of its sludge
by
spraying, but since
1977 all the application
(except for testing) has been by
incorporation.
While MSD argues that this was done “as
a
tjcstur~
of good will to the area residents”
(Resp. Brief
p.
1MB),
jt
is, rather,
something which could,
and
should, have been done
as soon as it became clear that odors were generating a
number of complaints.
The record
is clear that complaints have continued
to
dwindle to almost nothing since the date this action was filed.
MSD, for whatever reasons, has improved the operation
of
its
Fulton County Project.
The above—noted changes
in addition
to better incorporation methods appear to have made the project
environmentally acceptable.
While some odors
do
continue,
the testimony is insufficient as to degree of injury
and
frequency of occurrence to establish that unreasonable odors
continue to exist.
This goes a long way to show mitigation
and aids in fashioning a remedy.
Most of the citizen complaints
have
centered on
the
sprayinq
operations and those have now ceased.
While there is
testimony
indicating that bothersome odors continued to exist
through
1977
(177—182,
814—821,
1011—1012,
8526—8527,
8531,
8572—
8577 and 8548—8550,
among others), Lyle Ray,
as an Agency
witness, testified that the odors have been less offensive
in recent years
(1976—1978), and that he has noted them
for
shorter periods of time
(R.8626).
He testified further that
41—380
—9—
he believed this to result from the halting of spraying
operations,
improving incorporation techniques,
increasing
the use of certain fields for crops,
and the shifting of
application areas away from populated areas
(R.
8627).
The Agency recommends that the Board order MSD to cease
and desist
from causing air pollution and that it be barred
from spray application,
from transporting to Fultori County
sludge which
is not properly digested,
and from storing excns’3ive
quantities of sludge in Fulton County.
MSD argues that
no
conditions should be imposed upon it since the first two of
these have already been done and the third should not he.
The Board also finds that no conditions should he imposed,
but for differing reasons.
While there
is considerable testimon’t
linking spraying and the use of Imhoff sludge
to unreasonable
odors, the record does not demonstrate that spraying or the
use of
such sludge will always result
in unacceptable odors.
The Board will not foreclose the possibility
of
MSD
altering
its rechniques
so as
to make such application or
use
in an
environmentally
safe manner.
The Board further finds that there has not been a
sufficte’it-
showing
in the record to demonstrate that the quantity of sludge
in the holding basins results
in air pollution.
The Board,
therefore, declines to order that quantity
to he reduced.
The Board will,
however,
enter a cease and desist order.
Thus,
if MSD returns to its former practices and causes air
pollution,
further action may be taken against it.
The Board will also impose a penalty of $2500 to aid
i.ri the enforcement of the Act.
The Agency recommended a panalty
of $10,000.
MSD, of course, recommended that no penalty
be imposed.
Based upon the consideration of
the
factors
in
Section 33(c),
above,
the Board finds that the mitigating factors
of the social value of the site, the location of the site
and
the steps
taken to remedy the problem favor a small penalty.
Finally, the Board dismisses
the
allegation of water
pollution,
an allegation which was largely ignored during the
course of the proceeding, and which probably should have been
totally
ignored.
There is
no showing of discharges
to waters
of the state “likely to create
a nuisance or render such waters
harmful or detrimental or
injurious”
to people,
animals or
other legitimate uses
(Section 3(n) of the Act).
Further, there
is no showing that it would he technologically practicable or
economically reasonable to reduce or eliminate the discharges
(Section 33(c)).
While Melba Ripper testified to some possible incidents
of water pollution
(R.
661-662 and 669),
it was not clearly
established that any injury was caused and some of the incidents
may not have been within the complaint period
(R.
669).
George
41—381
—lu—
Spyres also testified to an open valve in a pipeline allowing
sludge to flow into a lake
(R.
2066—2075 and Comp. Ex.’s
15(a)—
(c)),
but again, there was no showing of injury.
The most competent testimony was that of Lyle Ray who made
weekly inspections of the project during the complaint period.
On
three occasions he detected
a leak or flow of sludge onto
the ground or into bodies of water.
On May
6,
1974 he reported that supernatant from a spraying
operation was discharging from a retention basin into a lake.
The lake was discolored in the immediate area of the discharge,
but the next day there was no evidence of a fish kill or any
other abnormalities
(p.
103 on Nov.
3,
1977).
On July
2,
1974 he investigated a complaint that sludge
spray was entering a
lake.
He met with melba and William
Ripper, among
others, and determined that the lake was a
retention basin and was actually serving its purpose
(pp. 174—
177 on Nov.
3, 1977).
On August
8,
1974 he inspected leakage from a retention
basin.
It turned out that someone left a small peice of plywood
in the release valve which prevented it from closing.
The
sludge flowed
¼
mile toward Big Creek, but stopped short of
Big Creek
¼
mile
(p.
191 on Nov.
3,
1977).
Lacking any testimony or other evidence of injury or of
techniques to avoid these minor incidents, the Board finds
that a water pollution violation has not bee proven.
This Opinion constitutes the Board’s findings of fact
and conclusions of law
in this matter.
ORDER
1.
The Metropolitan Sanitary District of Greater Chicago
(MSD) has violated Section 9(a) of the Act;
2.
MSD
is hereby ordered to cease and desist from
emitting odors from its Fulton County project so
as to violate Section 9(a) of the Act; and
3.
MSD is hereby ordered to pay a penalty of $2500
for the above-noted violation.
This penalty shall
be paid within 45 days of the date of this Order
by certified check or money order payable
to the
State of Illinois and sent
to:
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
IT
IS SO ORDERED.
3.
Anderson abstains.
4
1—382
—11—
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify,that the above Opinion and
Order was adopted on the /~/~‘day of
_________
,
1981
by a vote of
_____.
-
‘~-
~‘~:t
(
——
Christari
L.
Moffett,
klérk
Illinois Pollution eTh.trol Board
41—383
