ILLINOIS POLLUTION CONTROL BOARD
May 10, 1973
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
vs.
)
PCB 72—148
PROCESSING AND BOOXS,
INC.,
an
Illinois Corporation, NATIONAL-
MELLODY FARM
FRESH
EGG COMPANY,
an Illinois Corporation; and
AEROGLIDE CORPORATION,
a North
Carolina Corporation qualified to
do business in Illinois,
)
Respondents.
Richard Cosby, Assistant Attorney General for the EPA
Lewis Clarke,
Sr.
and Clayton Voegtle, Attorneys for Respondent
Processing and Books,
Inc.
and National-Mellody Farm
Fresh Egg Company
John G.
Campbell and John W. McCullough, Attorneys for Respondent
Aeroglide Corporation
OPINION AND ORDER OF THE BOARD
(by Mr.
Henss)
Respondents Processing and Books,
Inc.
and National-Mellody
Farm Fresh Egg Company, owners and operators of a poultry farm
near the village of Mundelein are charged with causing air
pollution in violation of Section 9(a)
of the Environmental Pro-
tection Act and with installing equipment affecting air quality
without first obtaining
a permit,
in violation of Section 9(b)
of the Act.
The alleged air pollution consisted of odors from
operation of:
(1)
a manure drier used to convert chicken manure
into saleable fertilizer,
(2) an incinerator used to dispose of
chickens which die during the normal course of farm operation,
(3)
exhaust emissions from chicken houses, and
(4) the spreading
of chicken manure on farm acreage.
It was alleged that the
gaseous emissions settled into homes, other buildings and open
areas located within 1/2 mile of the poultry farm.
Respondent Aeroglide is alleged to be the operator of the
Aeroglide drier used to dehydrate the chicken manure.
All Respondents are charged with construction of new hen
houses, incinerators and the Aeroglide drier and the installation
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729
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of an after burner on the Aeroglide drier without first obtaining
an EPA permit.
The Complaint was filed on April
7,
1972 one week prior to
our adoption of Air Pollution Control Regulations.
We have pre-
viously held that violations allegedly occuring after the filing
of a Complaint will not be considered.
Therefore,
the new
Regulations cannot control our decision here.
Soon after the Complaint was filed Respondents Processing and
Books,
Inc. and National-Mellody filed a Motion for Dismissal
which was supported by various exhibits and affidavits.
In the
Motion these Respondents stated that 16 chicken houses were con-
structed during the years 1965,
1968 and 1969;
that building
permits were granted by the Director of Building and Zoning of
Lake County; that permits are required under Section 9(b) of the
Act only when such facility is “designated by Board regulatbns”
as “causing or contributing
to air pollution or designed to prevent
air pollution” and that no such Board designation had been made;
that Section 3—2.120(d)
of our predecessors Rules and Regulations
Governing the Control of Air Pollution specifically exempted all
“equipment used on farms or ranches for agricultural purposes”
from permit requirements; that Section 3-3.331 of the Ru~ excepts
from prosecution any air pollution violations resulting from “upset
conditions, breakdown or cleaning of gas equipment or related
operating equipment” and that such breakdown conditions have been
reported annually by Respondents; that there has been no cause of
action stated against Respondents;
that the Illinois EPA made no
test regarding emissions from Respondents’
incinerators; and, that
Respondents determined after numerous examinations
that no gasses
were emitted from the incinerators.
Exhibits attached to the Motion establish that constmction of
the chicken houses occurred in 1965,
1968 and 1969 and that con-
struction of the Aeroglide manure drier was contracted in April
1970 with actual installation occurring later in the year.
Affidavits presented by the Respondents assert that malfunctions
of the manure drier occurring in May and June,
1971 and in March,
1972 had resulted in shut-down of the drier on each occasion and were
reported annually to the EPA.
We are also told that Respondent Processing and Books, Inc.
has not accepted the drier and will not accept it until it operates
satisfactorily and without objectionable discharges of gaseous
emissions.
Respondents’
employees stated in the affidavits that no odors
extended more than 50’
in extreme cases from the incineators.
7— 730
—3—
The EPA asked the Board to delay ruling on Respondent’s Motion
for Dismissal until after a hearing on the merits.
Because of the nature of many of the arguments made by
Respondent we decided that it would be better to address these
matters only after a full and complete hearing on the merits.
The case’ therefore,
proceeded to public hearing after all
Respondents had filed Answers to the Complaint.
Respondent Aeroglide in its Answer contends that, although
it sold components of the manure drier and provided technical
assistance for the contractor,
it was not an operator of the drier
and that Aeroglide was not among the class of persons required to
obtain
a permit.
The Answer of Respondents Processing and Books and National—
Mellody includes a contention that:
to hold Respondents in
violation of the statute when there exists no ascertainable
standard as to what constitutes “air pollution’t is a violation of
Amendments V and XIV of the U.
S. Constitution and Article 1,
Section
2 of the Illinois Constitution.
We deny this contention
since air pollution is adequately defir~dinSection 3(b)
of the
Act as:
“The presence in the atmosphere of one or more conta~itinants
in sufficient quantities and of such characteristics and duration
as to be injurious to human, plant or animal life,
to hea1th~or
to property,
or to unreasonably interfere with the enjoyment of
life or property”.
The requirement that Respondents not cause,
threaten,
or allow the discharge of contaminants which would cause
air pollution is sufficiently informative to meet the constitutional
test.
A series of five public hearings began with the submission of
a Stipulation by the parties.
In the Stipulation it was stated that
Respondent National-Mellody is
a wholly owned subsidiary
of
Processing and Books; that Respondents’ chicken houses,
incinerators,
manure drier and waste disposal operations caused,
threatened or
allowed the discharge of gaseous emissions into the atx~sphere;
that between December 21, 1971 and May
5,
1972 the manure drier
was run for various periods on each of about
36 days and odor was
noticed in close proximity to the drier on or about
6 of those
days due to upset conditions causing the drier to be shut down for
adjustments and repairs; that subsequent to May 5,
1972 a basic
structural change was made to the manure drier whereby a heat—
exchanger device located after the after burner was replaced by
a stack which allows a retention time of at least 0.6 seconds at
a temperature of at least 1400°F. with
a result that on October 31,
1972,
two Agency investigators detected no odors emanating
froxw
the drier with the exception of
a very slight scent detectable
only for
5 to 10 seconds at a distance of 250
—
300 yards west—
northwest of the drier;
and, that Respondents had not obtained
permits for construction of the hen houses,
incinerators and the
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manure drier.
The facilities
in question ~re located on Hawthorne Melody
Farms about 1 mile south and west of the village of Libertyville
and about 1/4 mile east of Mundelein.
The west border of the
farm
•is Butterfield Road.
The present owners acquired the farm
in 1932.
The farm was used for the raising of chickens,
hogs,
horses, turkeys, white fallow deer, dairy cattle, sheep and
pheaskins
(a cross between pheasants and chickens).
Until 1965
the chicken population on the farm averaged 15,000-18,000 chickens.
An expansion program began in 1965 with the bui’ding of two
additional chicken houses and was followed by the construction
of two more chicken houses in 1966 and twelve chicken houses in
1969.
Presently housed at the site are about 300,000 chickens,
35 horses,
500 hogs,
and 50—60 white fallow deer.
Some 500
turkeys were raised and sold in 1972.
Approximately 160,000 eggs
are produced and packaged daily.
In addition to the 16 chicken houses the site has one building
which contains an egg processing room, one feed mill, two
incinerators to dispose of dead chickens
(about 175 chickens per
day) and one Aeroglide drier for dehydrating animal manure.
Of
the total 1800 acres comprising the farm about 1,068 acres are
used to grow co~ for feed.
From the evidence we believe thai the facilities
in question
were being used for “agricultural purposes” and that under the
Regulations applicable to this case no permit was required for
installation of equipment affecting air quality.
Our greatest
concern is whether the incinerators should be so classified but
we believe that their intimate connection with the hen house
operation would in this particular case make that exception
applicable.
The Agency contends that this is a commercial operation since
profit is
a primary motive.
We note, however, that such is the
motive of any agricultural operation and regardless of the semantics
involved, we believe that the equipment presently at the site was
exempt from permit requirements under Section 3—3.120(d)
of the
Rules.
We find that the failure to obtain an installation or
operating permit was not a violation of the Statute and the Regu-
lations.
We give fair warning, however, that this decision may have
limited effect as precedent.
On April 14~1972, one week after
the failing of the Complaint,
this Board adopted a new and compre-
hensive set of Air Pollution Control Regulations.
Rule 103(a) (1)
of these Regulations states:
“Prohibition.
No person shall cause
7
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732
—5—
or allow the constiuction of any new emission source or any new
air pollution control equipment,
or cause or allow the modification
of any existing emission source or air pollution control equipment,
without first obtaining
a construction permit from the Agency,
except as provided in paragraph
(i)
of this Rule 103”.
Paragraph
(i)
of Rule 103 does not contain any exemption for eq~ipmentused
for “agricultural purposes”.
The vast majority of testimony received during the hearings
was directed toward the allegation that Respondents had caused
air pollution within the meaning of Section 9(a) by causing an
odor nuisance in the community.
Mrs. Jean Kemnitz testified
that she has driven by the poultry farm about
5 times a week for
the last
3 years.
She stated that under certain wind conditions,
she experiences a “terrible odor”
like “chicken manure” that is
sometimes “so bad I have to hold my nose;
I can’t even breathe”
(11/13/72
R.
19-20)
(Reference is
to hearing date and page of
record)
Mrs. Kemnitz moved 15 years ago to her present residence
1/2 mile south of the poultry farm.
She feels that the odor is
worse now than it used to be and began reaching her residence’
about 2 or
3 years ago
(11/13/72
R.
21).
She stated that the odor
is not as strong at her home as that experienced in driving by the
farm and is mostly an annoyance at her home.
Although she did not
keep any records, Mrs. Xemnitz estimated experiencing the odor
about 10 times in 1972.
On cross examination, Mrs. Kemnitz
testified that she experienced another odor mixed in with the
chicken manure odor, which she could not describe but thought it
may have been connected to the chicken burning operation
(11/13/72
R.
28).
Witness Frank Cooper who resides and operates a manufacturing
firm about 1/4 mile south of the poultry farm, testified that
about
1 and 1/2 years ago a fog like condition developed with a
stench so bad that “you could hardly get your breath”.
At that
time he visited the farm to see if he could get the smell stopped
(11/13/72
R.
35—36).
He was unable to talk to anyone in authority
at the farm and he then called the Hawthorne Mellody office and
was informed that “something could be done to stop the smell”
(11/13/72
R.
36).
Mr. Cooper identified the source of the fog like
condition as the farm and more particularly as a new building “south
and east of the chicken houses”
(11/13/72
R.
58).
Mr.Cooper also
stated he noticed the same odor for about 3 years, was bothered by
the odor at night
(11/13/72 R.
43), was forced to cease outdoor
entertaining because of the odor
(11/13/72 R.
44)
and received
complaints from his employees who were forced to eat lunch inside
(11/13/72
R.
47) because the odor was so strong
(11/13/72
R.
49).
Other witnesses gave the following accounts:
The odor caused instant nausea when she stepped outside
her home
(11/13/72
R.
77).
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You step outside your home and the air is just permeated
with this odor.
It is really a putrid odor.
I would
say it is probably chicken manure, or if they burned
chickens,
it might be that, and I really can’t imagine
what it is, but it is bad
(11/13/72 R.
82).
I smelled the chickens in the old chicken coops that they
used to have out there before this, but after they put up
that incinerator,
or whatever they call that,
then it
started getting this here real strong bad odor, much
worse than we had before
(11/13/72 R.
96).
The odor was bad.
It smelled like burning chicken
feathers, along with things that come from having 100,000
chickens at
a site
(11/13/72 R.
137).
...I could detect the odor even in town,
at my home, which
is about a mile and a half north...
The odors do affect
people here in town when the wind is from the southwest
(11/13/72
R.
138).
Oh, yes,
I would say that it has been over the course of
the past 12 years that I’ve been here that the odor has
been very strong or that the odor has been there often
(11/13/72
R.
143).
I think the main effect was you would walk outside and
smell this odor.
You didn’t want to stay out there at
all.
The first thing you do is run back into the house,
and it made it rather difficult during the
summer
because
you couldn’t go out and enjoy it at all
(12/5/7.2
R.
11).
I walked outside and I took one breath of air,
and I felt
rather sick, rather nauseous
(12/5/72 R.
12).
Believe odor was worse during 1971 than 1972.
Noticed
odor three or four times a week during 1971
(12/5/72
R.
17).
To me it is a combination of chicken manure and rotten
chicken and chicken feathers
(12/5/72 R.
39).
Noticed odor in Hawthorne School parking 1~t (12/5/72 R.
41)
To me it smelled like burning,
flesh burning, something
like
that, hair burning
(12/5/72 R.
107).
Well,
so far, we’ve never been exposed to it long enough,
but me personally,
I began to get nauseated,
so we rolled
up the windows in the car
(12/5/72 R.
109).
It’s different.
It smells like something burning
(12/5/72
R.
110).
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Yes, very distinct odor,
so bad you sometimes can’t even
sit outside
(12/5/72 R.
167).
A.
Well, we get an odor pretty often.
It is a terrible
odor.
Q.
Can you describe the odor for me?
A.
I know it’s burning chicken and feathers.
It smells
like it.
(12/5/72 R.
177)
It covers the whole place.
You have to keep the windows
shut unless..it gets right into the house.
I can’t
have a cookout outside
(12/5/72
Ft.
178).
In dead of night, we get that odor.
It comes through and
wakes me up out of bed.
I have to get up and close the
windows
(12/5/72
Ft.
192).
Testimony obtained during the other hearing dates from persons
residing near the poultry farm added more statements of this type
to the record.
Respondents witnesses testified that they noticed no odors at
all or noticed some odors but not of sufficient strength that it
couldn’t be taken in stride
(1/16/73 R.
610), put out of mind and
forgotten (12/6/72 R.
216) or be distinguished from exhaust odors
from buses
(1/16/73 R.
600).
Dr. Howard C.
Zindel, professor and Chairman of the Poultry
Science Department, College of Agriculture, Michigan State University
inspected the poultry farm as a consultant on November 15, 1972
and testified as an expert witness on behalf of Respondents
Processing and Books and National-Mellody.
Dr.
Zindel provided a
description of the chicken houses which involved a summary of the
air exhaust system currently in use.
He estimated that the vent
fans in the chicken houses probably exhaust 7 cubic feet of air
per
bird per minute.
During his inspection, Dr.
Zindel stood outside one of the
chicken houses in the path of a fan exhaust and did not notice any
“poultry manure or poultry odor”
(12/6/72 R.
252).
He then pro-
ceeded into the chicken house where he noticed cleaning in progress
and again observed no odor.
The cleaning he observed was described
as scraping of manure with lathes to pull it down into the center
of the house.
When asked if fresh chicken manure had a substantial
odor,
Dr. Zindel replied “strange that it may seem,
there is no
odor for the first seven days when manure is expelled from the bird.
The odor begins after the bacterial action, and also chemical
action starts.
It is definitely then the maximum”.
(12/6/72 R.
252)
His investigation further revealed a lack of disagreeable odors in
the egg processing room and no detectable odors in the incinerator
I
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735
—8—
buildings.
He later said the incinerators had a “fragrance”
not objectionable to him (12/6/72 R.
321).
Dr. Zindel further stated that agitation of the manure pit
located in each chicken house in order to facilitate removal of
the liquid manure would definitely be a source of odor
(12/6/72
R.
253);
that the dehydration unit at the farm was one of many
methods being used for waste disposal but that the most typical
method used in agriculture is putting it on farmland
(12/6/72
R. 260-261); and that he did detect an odor in the manure drier
building but only when he picked up some of the dried material
which had been stored for sometime in one of the sheds
(12/6/72
R.
273).
He also detected odors, described as “a putrid sulfur
dioxide odor”, at the holding pit for the manure drier while the
manure tank was being unloaded into the pit (12/6/72
(R.
302,
303 and 304).
He found the odors personally obnoxious.
Dr. Zindel testified that the incinerators
“appear to be very
efficient, based on the ash that I looked at and based on the
contents being heated or burned in the interior of the unit”
(12/6/72 R.
272).
However, on cross examination,
Dr. Zindel did
not know if the incinerators were multichambered,
did not know
the operating temperature of the incinerator after-burners, did
not have an opinion as to what would happen if the after—burner
was operated at
a lower temperature than that suggested by the
manufacturer (12/6/72
R.
312),
did not know what temperature
was required in the after—burners to “get the job done”
(12/6/72
R.
326) and did not have knowledge or an opinion of the required
after-burner retention time
(12/6/72
Ft.
327).
The evidence in this case indicates that the primary sources of
odors on the farm are operation of the manure drier and the
incinerators.
Some odors also come from the chicken houses and
the spreading of the manure on the land.
Although Respondents
witnesses testified that odors came from the spreading of sewage
wastes on the farm from a nearby sewage treatment plant, we do not
believe that the odors described by the majority of the witnesses
came from this source.
The weight of evidence establishes that
odors caused by Respondents were
a nuisance in the community and
unreasonably interfered with the enjoyment of life or property.
We further believe that not all of these odors were the result
of upset conditions, breakdown or the shut down of equipment for
cleaning purposes.
Milton Brod testified that during 1971 he
noticed the odors
3 or 4 times
a week
(12/5/72 R.
17).
Lawrence
Byrne, President of National-Mellody Farm Fresh Egg Company, stated
that the established procedure was
to light both burners in the
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736
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incinerator at least 15 or
20 minutes before putting the dead
chickens into the incinerator (12/20/72 R.
431).
However,
his manager, Albert Wetzel testified that chickens are sometimes
incinerated before the temperature has been brought up:
“well,
we put in, say,
for instance, starting in the morning at——by
7:30 or so, we probably put in
20,
25 chickens, and the burners
then are lit.
.
..“
(R.
505)
He said some of the boys put the
chickens in first and then start the burners
(R.
508).
Odors
thereby caused are the result not of equipment malfunction but
of employee failure to follow the approved procedures.
From the evidence we are compelled to find that Respondents
Processing and Books, Inc.
an Illinois corporation, and its
wholly owned
subsidiary National-Mellody Farm Fresh Egg Company,
an Illinois corporation,
have violated the provisions of Section 9(a)
Environmental Protection Act.
Aeroglide Corporation sold the drier equipment and furnished
technical advice regarding its operation.
However, there is no
testimony indicating that Aeroglide exerted any control over the
operation of the equipment or of the business which caused the
odors to be emitted.
We find that a case has not been proved
against Aeroglide and will dismiss the action as to that Respondent.
Some of Respondent’s neighbors had lived in the area for almost
20 years.
Some of them had their own farm animals and therefore
had to dispose of manure.
Although they tolerated the past odors
emanating from a much smaller operation they found they could no
longer enjoy their homes and property because of the chicken
manure odor and the even more permeating odor of burning chickens
and feathers.
We believe that an appropriate monetary penalty for
the infliction of s.uch a nuisance is $3000.
The penalty might be
somewhat higher except for the fact that Respondent has continued
to make efforts to solve the odor problem.
Installation of a
stack in May 1972 providing increased retention time for burning
of gasses at a high temperature should reduce odor potential.
That installation, along with improved operator procedure,
should
result in substantial nuisance abatement.
We further note that under Rule 1.03(b) (2) National-Mellody
Farm Fresh Egg Company must obtain an operating permit by June
1,
1973 for its existing emission sources and air pollution control
equipment and that permits to operate the incinerators were to be
obtained by April
1,
1973.
These procedures carry the potential
for further improvement in Respondent’s operating procedures if
steps taken to date prove inadequate.
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737
—10—
ORDER
It is the order of this Board that:
1.
Aeroglide Corporation is adjudged not guilty of
the.icharges brought against
it.
2.
Respondents Processing and Books, Inc. and
National-Mellody Farm Fresh Egg Company,
an
Illinois corporation,
are adjudged not guilty
of the charges brought against them for
violating Section 9(b) Environmental Protection
Act.
3.
Respondents Processing and Books,
Inc. and
National-Mellody Farm Fresh Egg Company,
an
Illinois corporation,
are adjudged guilty of
violating Section 9(a) Environmental Protection
Act as charged and said Respondents shall
jointly pay to the State of Illinois by June 15,
1973 the sum of
$3000
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.
I, Christan L. Moffett, Clerk of
the
Illinois Pollution Control
Board, hereby certify the above Opinion and Order was adopted
this /O~day of May,
1973 by a vote of
~./
to
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o~ ~
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