ILLINOIS POLLUTION CONTROL BOARD

September 16, 1971

Employees of Holmes

Bros., Inc.

by F. Estel Williams, Chief

)

Engineer

v.

)

PCB 71-39

Merlan, Inc. and L. Mervis,

President

Environmental Protection Agency,)

Intervenor

Mr. John E. Sebat of Sebat, Swanson & Banks

for Merlan, Inc. and

L, Mervis

Mr. Frederick Hopper for the Environmental Protection Agency

Opinion of the Board (by Mr. Kissel):

On March 8, 1971, the employees of Holmes Bros., and property

owners and tenants in the vicinity, filed a Complaint with the

Board against Merlan, Inc. and L. Mervis, President. The Complaint,

filed on a Board complaint form, alleged that the Respondents, who

operated a plant in Danville, Illinois, created a

publip

nuisance,

violated Section

9 (a) of

the Environmental Protection Act in caus-

ing air pollution, violated Section 9(b) of the Act, and violated

SCctions 21(b) and (c) of the Act in dumping excessive water on the

street, On April 23, 1971, the Board received a letter from F,E.

Williams stating that he ~talked to Mr. Mervis and that Mervis

had agreed to certain improvements in material handling, including

reducing the height of stockpiles, installing a fence and installing

a feeder system for the raw materials at a lower level, and, as a

result, the Complainants asked that the Board “table” its Complaint

of March

4,

1971. Before the Board took action on the request of

the Complainants, the Environmental Protection Agency (the “Agency”)

through

the

Attorney General of the State of Illinois, filed a

Petition to Intervene in the case and filed a Complaint with the

Board. The Complaint alleged that since July 1, 1970, Merlan has

caused and

does

cause the discharge or emission of iron filings

and other contaminants into the environment so as to cause air pollu-

tion within the meaning of Section 9 (a) of the Act and asked the

entry of an order against Merlan to cease and desist the violations

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of the Act, and to pay penalties for past violations of the Act.

In an Opinion dated May 12, 1971, the Board granted the Agency’s

Petition to Intervene, and ordered that the case be set for hearing.

No action was taken on the original Complainant’s motion to table

the proceedings

because there was now a new complainant, the Agency.

Merlan operates a briquetting plant in Danville, Illinois,

It converts cast iron borings and steel turnings into solid cyclinders

about five inches in diameter and eleven inches in length. The

borings and turnings are the waste products of industrial plants and

cannot be used again unless they are made into solid blocks. The

compacted steel blocks are used to replace scrap metal in blast fur-

naces, but the borings and turnings themselves could not be used

in the furnaces because they would flash and not melt as the blocks do,

Merlan receives the borings and turnings in open gondola rail-

road cars and are tested by Merlan for mineral, moisture and oil con-

tent. If the tests show that the material is acceptable, the cars

are unloaded by a crane operated electromagnet. The material is

loaded on the grizzly. If not put directly on the grizzly, the

materials are stockpiled on the grounds of the plant. The grizzly

has an oscillating effect which permits the usable material to drop

through the screens onto an enclosed hopper where they are moved by

an enclosed conveyor to a higher hopper. Gravity, then, feeds the

material into the hydraulic presses for compression into the cylin-

drical briquettes, or finished product. The briquettes are auto-

matically loaded by conveyor onto gondola railroad cars for shipment

to customers. At this time, according to the Merlan brief, the

local General Motors factory takes the entire production of Merlan.

Although the employees of Holmes Bros., Inc. did not wish to

present their case as Complainants, many of the persons did testify

as to the conditions which exist in and about the Merlan plant.

Essentially, the persons who work and live in the area surrounding

the Merlan plant have three basic complaints: 1) the dust from the

piles and the unloading operation; 2) the smoke from fires in the

stockpiles; and 3) the oily odor which prevails from the piles

themselves. While there was some question in the minds of some of

the witnesses as to the source of the dust and the odor, there was

no question that recent fires on the Merla:~plant grounds have

interfered with the life and property of the neighbors and nearby

workers. In fact, one witness, Leo Smith, testified that the piles

would smolder a “few days” before they burst into flame. Depending

on the wind condition at the time, the

smoke

could and did travel

over the neighbors’ property. Luther Parker described the smoke

from the stockpile fires as “serious and profuse”. In general1 when

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the fires did occur, they spread a blanket of smoke throughout the

neighborhood which would interfere with the enjoyment of the life

and property of the people anywhere nearby.

The odor has also caused problems. Each of the witnesses who

appeared testified to an “oily” odor which emanated from the Merlan

plant. Geneva Oliver said the odor made her cough and Leo Smith

said that the odor was “sickening”. Mary Smith said the odor smelled

like “oily vomit” and she, as other witnesses had done, traced the

odor to the Merlan plant by walking to the site, noticing that the

odor intensified as she walked closer to the Merlan plant. The

odor was also described as “nauseating” and one witness stated that

the odor was not noticed in the neighborhood until the Merlan plant

began operation in 1967. It is clear from the record that Merlan

does emit an odor which has interfered with the enjoyment of life

and property in the neighborhood.

All of the witnesses complained of the dust emitted from the

Merlan plant. It was described as brownish in color and samples of

the dust were identified by almost all of the witnesses, The dust

apparently arises from the handling of the borings and turnings.

When the electromagnet is used, the borings and turnings are brought

up from the ground, or the railroad car as the case may be, and

dust is loosened by the quick raising action. The dust is also

generated by wind blowing across.the stockpiles and the agitation

of the borings and turnings in the grizzly. All of this agitation

or movement of the borings and turnings causes the dust attached

thereto to loosen and the dust is carried by the wind onto the

neighbors’ property. F,E. Williams,who works for the Holmes Bros.,

which is directly south of the Merlan plant, testified that he

parked a “relatively clean” car near the Merlan plant and within a

relatively short time his car was covered with the brown dust.

He noticed that the dust was a particular problem when the wind

was from the north blowing over the Merlan property. Geneva Oliver

was not completely sure that the dust came from the Nerlan plant,

but

the dust of similar description to that which came from the plant

made her house dirty. Lee Moreman said that the dust from the

Merlan plant appeared on his windowsills and car. While there may

be some question as to the source of the dust which was testified

to by many of the witnesses, we find that there was sufficient connec-

tion with the Merlan plant to say that the source of the dust was the

handling operations in the plant, and the dust is of sufficient

quantity to interfere with the life and enjoyment of the property

of Merlan’s neighbors.

2 — 407

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The sole issue in this case concerning the liability of Merlan

is whether Merlan is guilty of causing “air pollution” in violation

of Section 9(a) of the Act. “Air pollution” is defined by the Act

as follows:

the presence in the atmoshpere of one or more

contaminants in sufficient quantities and of such char-

acteristics 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.”

It is clear from the record in the case that the operations of Merlan

have “interfere(d) with the enjoyment of life and property” of the

neighbors in allowing the dust emissions to continue, and in allowing

the smoke and odors to be emitted. The question remains as to

whether the interference was “unreasonable” as provided in the Act.

This Board has interpreted that word in the Act in a recent case

before it. In

Moody v. Flintkote, PCB 71-67, dated March 30, 1971,

the Board held that the emissions of contaminants were”dnreasonable”

if, in fact, there was any interference with the

enjoyment of life

and property~, and there was technology available

to control the con-

taminant emission source which was technically feasible and econom-

ically reasonable. Since we have already found on the record in

this case that Merlan’s operations did interfere with the enjoyment

of life and property, the question remains whether the described

technology is available.

The entire source of Merlan’s contaminant emissions is the

storage and handling procedure employed with the turnings and borings

which are used by Merlan to make briquettes. The smoke emissions

came from fires which apparently started spontaneously because the

stockpiles were too high. The “oily” odor came not only from the

burning piles, but

from the storage of the materials in the open.

The dust comes from the handling of the turnings and borings by

using the electromagnet to unload the railroad gondola cars which

con-

tain the turnings and borings and to transfer the turnings and borings

from the stockpiles to the grizzly and from the operation

of

the

grizzly. Based upon the testimony in the record, not only has Merlan

already taken action to correct some of

the problems, but it is

evident that sufficient other material handling technology exists

to

completely control

the emissions of dust, odor and smoke. Up to

this time Merlan has lowered its stockpiles, built higher fences

to

trap the windblown dust,

enclosed hoppers and conveyors, lowered

the grizzly from 65 to 25 feet and put

sides on the grizzly.

Merlan has plans to do other things which will indeed control the

emissions further.

This involves further lowering the grizzly so

that its top will be within 5 feet above the

ground enabling it

to

be loaded by a bucket

endloader. This type of loading will elimi-

nate the puff of dust which occurs when the grizzly is loaded with

2

—

408

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the electromagnet. In the 8 foot pit below the top of the grizzly

the bucket, the elevator system, the bottom oscillator and other

conveyor equipment will be enclosed by steel plates. This new grizzly

system is to be installed by September 30, 1971 at

a cost of $15,000.

In addition, Merlan’s consultant, Dr.. Mijo Matkovic, has

suggested the instai~tionof a cyclone system

which would be put on

the grizzly. This system when installed will collect 96 of the dust

emissions from the loading and operation of the gri2zly.

The cost

of this cyclone will be $19,000,

Merlan has stated

that it

will no longer use

the electromagnet

in the loading of the grizzly, but

it is unclear whether its use will

be discontinued in unloading the railroad gondola cars.

Dust can be

emitted at that point in the material handling operation as well.

In

fact, the record is fuzzy about what,

if

anything, Merlan intends to

do about the unloading of these cars, and the stockpiles

themselves.

It was apparent that dust

was being blown from the piles, and that

the fence was inadequate to catch the materials. We, therefore, will

order Merlan to submit a program for the control of this part of the

operation, which submission shall include a detailing of what can

be done, at what cost, and in what

amount of time.

One of the areas

which should be covered is the technical feasibility and cost of

enclosing the stockpile area. It will be ordered that the report

should be filed with the Board and the Agency within 45 days from

the date of the Board’s order, and the Agency shall submit comments

and recommendations to the Board and Merlan within 15 days after

receipt of the report from Merlan. The Board shall enter such further

order at that time as the Board shall deem appropriate.

One issue remains. The Agency has asked that the Board assess

money penalties against Merlan for the violation of the Act since

July 1, 1970. We do not agree that money penalties should

be

assessed in this case. While the record

does

indicate that Merlan

was violating Section 9(a) of the Act, the record is also clear that

Merlan has made substantial efforts to control its dust, smoke and

odor problem. Merlan

had

been visited by the Agency representatives

and in a letter to Merlan dated January 27, 1971, the Agency said

that Merlan had taken “appropriate action for the corredtion of the

complaints”. Further, when Merlan was faced with the complaint by

the employees of Homes Bros., Inc., Mr. Mervis, the president of

Merlan

met

with F.E. Williams and agreed to certain steps to try to

solve its problems.

In

the opinion of

the

Board, Merlan has exer-

cised good faith in trying to control its problems, and to penalize

a company such as this would discourage all those who act in good

faith to bring an end to their pollution problems.

It is certainly

the policy of this Board not to penalize those who are honestly

trying, which is certainly the case here.

2 — 409

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This opinion of the Board shall constitute its findings of

fact and conclusions of law.

ORDER

Upon consideration of the evidence and exhibits in this case,

Merlan is hereby ordered as follows:

1. Merlan shall cease and desist operating its

plant in violation o:F Section 9 (a) of the Act

in allowing the emission of dust, odor and

smoke into the atmosphere in such quantities

so as to unreasonably interfere with the life

and enjoyment of property of the neighbors of

the plant.

2. Merlan shall install or construct the following

which are more adequately described in the record:

a.

The cyclone system described by Dr. Mijo

Matkovic shall be installed by January 15,

1972.

b. The grizzly shall be lowered and the con-

veyor system enc1o~ed, as described in the

record,by October 15, 1971.

3. Merlan shall continue the careful material handling

techniques such as lower stockpiles, which tech-

niques have already been instituted by Merlan to

reduce the possibility of spontaneous fires and

dust emissions.

4. Merlan shall within 45 days after the date of this

order file a written

report with the Board and the

Agency, which report shall detail alternative

systems,

which are technically feasible,

for the reduction,

or elimination,

of dust emissions from the unloading

of railroad cars and storage of the stockpiles.

This report shall include, inter alia, a detail of

alternative programs, if available, the costs of

those programs, and the time for completion for

each of them. The Agency shall file a report with

the Board and Merlan within 15 days after receipt

of the Merlan report giving the Board and Merlan

the Agency’s recommendation on the programs detailed

by Merlan, The Board shall review the reports and.

make such further order as it shall deem necessary.

I, Regina B. Ryan, Clerk of the Illinois Pollution Control

Board, certify that the Board. adopted th

e Opinion and Order

on the

/~.

day of

2

— 410