ILLINOIS POLLUTION CONTROL BOARD
October
14, 1971
LLOYD A.
FRY ROOFING COMPANY
#71—4
v.
ENVIRONMENTAL PROTECTION AGENCY
REV.
LOUIS HEMMERICH,
ET AL
#71—33
V.
)
CONSOLIDATED
LLOYD
A.
FRY ROOFING COMPANY
BURTON
Y. WEITZENFELD AND PAUL LEEDS, ATTORNEYS FOR LLOYD A.
FRY
ROOFING COMPANY, PETITIONER AND RESPONDENT
PATRICK A. KEENAN AND DENNIS GROSS, FOR
REV.
LOUIS HEMMERICH, ET AL,
COMPLAINANT
JOHN McCREERY
AND
FRED PRILLAMAN, ATTORNEYS
FOR ENVIRONMENTAL
PROTECTION AGENCY
JAMES
RUBIN, ASSISTANT ATTORNEY GENERAL
PETER C.
ALEXANDER,
ATTORNEY
FOR
THE
COUNTY
OF
COOK
OPINION OF THE
BOARD
(BY MR. LAWTON):
Petition
for variance from the particulate regulations of the
Rules
and Regulations Governing the Control of Air Pollution was filed
by Lloyd
A.
Fry Roofing Company
(Fry),
received by
the Board on Janu-
ary 20,
1971.
The petition describes the nature of
the company’s
manufacturing process and the general nature of its emissions alleged
to be at
a rate of nine pounds per hour.
The variance requests
con-
tinuance of particulate emissions
in excess of regulation limits
for
a period of
“at least six months awaiting the determination of
the
route of
the new south—west expressway,
plus
the twenty weeks time
to fabricate and install the air pollution systems.”
The substance
of the request is that petitioner fears
the routing of the express-
way might require acquisition of its property and that petitioner
does not want
to incur
the cost of abatement equipment installation
unless the continuity of its operation
at its present location
is
assured.
The Board authorized hearing on this petition.
On
February
21,
1971,
a citizen’s complaint was filed with
the Board
by
Louis
Hemmerich
and
four
other
individuals,
all
members
of
SORE
(Save
Our
Resources
and
Environment),
against
Fry
alleging:
“that Respondent Fry did,
on February
17,
1971,
cause and allow the discharge
and emission into the
environment of contaminants
so
as
to cause or tend
to cause
air pollution in Illinois, and further that
Respondent Fry has engaged and continues to engage
in
a
pattern
of
conduct
such
as
to
cause
and~allow
the
discharge
and
emission
into
the
environment
of
contaminants
so
as
to
cause
or
tend
to
cause
air
pollution
in
Illinois.”
Hearing
was
authorized
on
this
complaint
by
which
order
of the
Board was consolidated with Fry’s variance petition
for purposes
of
hearing.
At the initial hearing on the consolidated petition and com-
plaint, Fry declined to i’ntroduce evidence
in support of its var-
iance petition but stated,
through its counsel,
“that the plans
for
construction and installation of emission control equipment
will be off
the drawing board and the company
is going to proceed
and that is what is in the record as far as Fry is concerned
as far
as the proceedings
are concerned”.
(R,18)
.
No details of this
program,
either as to the nature of the abatement equipment proposed
to be installed or
the time schedule
for its installation appear
on the record nor does
any motion appear to have been m,ade by Fry
to withdraw its variance petition.
On this state
of the record,
the
Board has
no alternative but to deny the variance
as petitioner has
failed to establish the statutory requisites
for its allowance.
Section
35, Environmental Protection Act.
IT IS THE ORDER of the Board that the petition for variance
filed by Lloyd A. Fry Roofing Company be
and the same is hereby
denied,
The record of
the proceeding, concluded on August
12,
1971
after six hearings,
the transcript of which contains
906 pages,
clearly establishes
that Fry has caused air pollution as defined in
the Environmental Protection Act, Section
3(b)
and ha~violated
Section
9(a)
of the Act,
has emitted particulates
into the atmos-
phere in an amount exceeding the limits set forth
in the Rules and
Regulations Governing
the Control of Air Pollution,
Section 3-3.111,
which violations havecontinued
since
1968
and are inherent in its
daily operation,
and has failed to file
a
letter, of intent and an
—
582
Air Contaminant Emission Reduction Program
(Acerp)
as required by
the regulations, Sections
2-2.3
and
2-3.4.
Fry is ordered to cease
and desist the emissions
of particu-
lates
into
the atmosphere in violation of the Environmental Pro-
tection Act and the Rules and Regulations Governing the Control of
Air Pollution.
Penalty
is assessed against Fry in the amount of
$50,000.00 for the violations aforesaid.
Further hearing will be
held in this matter as hereinafter provided.
Lloyd A. Fry Roofing Company
is one of the world’s largest
manufacturers of asphalt roofing, operating
24 plants in various
parts of the United States.
The facility involved in the present
proceeding is located in Summit,
Illinois, where it has been engaged
in production of asphalt roofing and allied products
for many years.
The Voliney Felt Mill appears to be
a subsidiary or division of
Fry and occupies
the same premises, supplying the felt used in the
operation.
The Trumball Asphalt Company, while purportedly being
a separate entity in no way connected with Fry,
is located contiguous
to the Fry plant
in Summit as
it is in other parts
of the country
where Fry plants are located,
and supplies the asphalt used in Fry’s
manufacturing process.
The recommendation of the Environmental Protection Agency filed
in the variance proceeding,
describes the manufacturing process.
Since nothing has been introduced to refute these allegations,
these
statements will be accepted as
true.
Lloyd A. Fry,
Jr.
did testify
to certain aspects of the operation which testimony
appears consis-
tent with
the Agency’s assertion.
The manufacturing process may be
briefly described
as follows:
Woodchips
are converted into fine wood flour which
is com-
bined with rags
and cardboard scraps and placed
in water—bearing
tanks where
a slurry is formed,
The
slurry,
in turn,
is processed
through mashers after which the slurry is pumped into chests where
specific thicknesses
of the solid material
are removed by
a belt.
This product constitutes
the wet felt which is further processed
through
a battery of steam-heated drying rollers,
After drying,
the felt is processed through
an asphalt saturator where
the heated
asphalt is absorbed by the
felt,
Coating is then applied and colored
granules
added.
The finished product is then cooled,
cut into
shingles or wound in rolls.
Approximately 4.7 tons
of asphalt are
consumed in the process.
The Agency
alleges that 165,000 gallons
of
#5 fuel oil of 1,5
sulphur content are consumed annually,
and that 530 pounds of particulates and
106 pounds of SO2 are
emitted daily, resu~tingin emissions of 63.6 tons
of particulates
and 12,7 tons of SO
annually.
The principal sources of emissions
causing air pollution are the saturators.
There
is no control device
of any sort located on the stacks connected with these units,
No
2
*
583
Air Contaminant Emission Reduction
Program was ever submitted to
the
Air Pollution Control Board although Fry has been in constant
operation at its present location since prior
to 1967 when this
requirement was enacted as
a regulation of the Air Pollution
Control Board.
On June
20,
1968,
C. W. Klassen, Technical Secretary of the
Illinois Air Pollution Control Board wrote (Environmental Protec-
tion Agency Exhibit
#2)
to Francis Nelson, Chief Engineer of Fry,
as follows:
“Dear Mr. Nelson:
This is to confirm the conversation between you and our
Engineer,
Mr. William Zenisek, during his visit to your
Plant on June
11,
1968.
The information which you furnished on
the Asphalt
Saturators has been reviewed with the following conclu-
sions:
1.
Process Weight Rate
6250 lbs/hour
(Saturant)
2.
Allowable Emission Rate
8.8 lbs/hour
3.
Estimated Emission Rate
65 lbs/hour
“Compilation of Air Pollutant Emission Factors.”
(U.S.Public Health Service Publication #99-AP-42,
page 33.)
Since the estimated emission rate exceeds
the allowable
emission rate,
an Air Contaminant Emission Reduction Program
must be filed for this source operation in compliance with
the State Regulations,
as soon as possible,
as
the due date
for these programs was April
15,
1968.
We shall appreciate learning
of your plans
in this matter.
If our Technical Staff can assist you,
please
feel free
to
contact us.”
No Air Contaminant Emission Reduction Program
was, ever submitted
by Fry to the Air Pollution Control Board or to this Board.
Viola-
tion of this requirement
is manifest.
Likewise, particulate emis-
sions
in excess of those allowable based on the process weight are
clearly demonstrated by
the record.
While
the estimated emissions
are 65 pounds per sour
(R.7l9,753-60),
it should be noted that the
Environmental Profectioii Agency Exhibit
#3,
show. emission rates rang-
ing from
20 to 70 pot~ndsper nc~ur. However, even assuming the low-
est figure,
it is evident that Fry’s emissions would be two
and one—
half times those permitted by
the regulations.
We have held
(EPA v.
Lindgren Foundry Co., #70-l)that standard emission factors may
b~used as
a basis
for determining violation
in the
absence of an affirmative showing that the specific pollution’ source
2
—
584
involved or
the, circumstances relating
to its
operation are such
as to make it substantially different from the elements considered
in the standard emission factor computation.
(See EPA v. Norfolk’
&
Western Railway,
#70-41).
The record in this case contains no
evidence to call for
a distinction,
and,
accordingly, we
are justi-
fied in placing reliance
on these
figures.
(See EPA Exhibit
#1,
Page 33.)
Even using
the figures contained in the Air Pollution Engineering
Manual, EPA Exhibit #3,showing
a range of
20 to 70 pounds per hour
(P.
378),
a violation is clearly demonstrated.
From the foregoing,
it is
evident
that
Fry
has
violated
the
regulations
in
its
failure
to file an Air Contaminant Emission Reduction Program and in failing
to abate the emissions generated by its saturators, which
are
demonstrably
in excess of the allowable emission limits
of
8.8
pounds per hour,
Fry operates today as it did in
1968 when these
circumstances were originally brought to its attention.
While the
failure
to
file
an
Acerp
and
the
continuation
of
unabated
emissions
in
violation
of
the
relevant
regulations
would
be
sufficient
basis
for
imposing
a
substantial
fine,
it
is
also
necessary
to
ascertain
whether
Fry’s
operation
constitutes
air
pollution
as
defined
in
the
statute.
In
order
to
make
such
finding,
it
is
necessary
to
go
beyond
the
technical
violation implicit in exceeding regulatory numbers
and
make
a
determination
of
whether Fry’s operation substantially
interfered
with
the
enjoyment
of
life and property in the community.
The
record
amply
supports
such finding.
The record is replete with
testimony
by
witnesses
residing
in
the
community
who
have
suffered
as
a
consequence
of
Fry’s
continuing
indifference
to
their
well-
being,
Numerous
witnesses
testified
to
having
observed
heavy
smoke
emanating
from Fry’s stacks and
at the same
time, being acutely awar~
of the odors caused by these emissions.
Witnesses testified to the
unique nature of the asphalt odor
and indicated their capability
of
distinguishing
this particular smell from those caused by
the
sludge ponds
of the Sanitary District,
emissions from the Corn
Products facility
and odors characteristic of Diesel truck exhaust,
The observations were frequent during the years
1970
and 1971, both
up
to
and
during
the
period
of
the
trial.
The emissions
:‘;~
ised
headache,
nausea,
burning
to
the
eyes,
nose
and throat,~
~‘..;hing,
upset stomach,
and in many instances,
foreclosed outdoc
activities.
Typical
is
the
statement
of
James
S.
Johnston,
(R.189)
.
The smoke
and odor “makes you sick,. .it makes your eyes water, parches your
throat and you get sick from it.”
Observations were made by this
witness
during
September
and
October,
1970
on
four
occasions~
and
four
dates
during
1971,
Mary
Younker
testified
to
having
o~~:t~ved
emissions
over
a
period
of
one—half
year
and
stated
that
the
odors
2
—
585
filled her home
and gave her headaches
and nausea.
She made ob-
servations on at least three occasions in 1970 and nine occasions
in 1971.
Affidavits were introduced into evidence by
the members of
SORE, which further confirmed the severe burden Fry’s operation hasim-
posed
on the neighborhood.
In addition
to the specific February
17,
1971 date set forth in the complaint, numerous other dates of ob-
servation and nuisance are observed.
These affidavits were the
subject of intensive cross—examination by Fry’s counsel and
all
affiants were present
at the hearing.
We find no error in the
admission of these affidavits,
and feel that the testimony of these
witnesses, both written and oral, amply support a finding of severe
nuisance and air pollution as defIned in the statute.
In addition to the personal distress created by Fry’s opera-
tion, these witnesses testified to the inability
to conduct Little
League baseball and football in contiguous areas
as
a consequence
of Fry’s emissions.
Typical of the affidavits
is that of Katherine
B. Massa:
“She was,
on Weanesday, February
17,
1971,
at Walsh
School,
one block north of Fry Roofing on Archer Road,
and observed the following:
The temperature was 20-30° and the sky was partly
cloudy.
The wind was from the southwest.
Gray smoke was coming from the stacks on Fry Roofing
Co.
as pictured in Complainants’ Exhibit No.
10.
The odor of the smoke was exceptionally noxious,
a
heavy,
tarry
smell.
The smoke and odor affected her and
caused her eyes
to tear and sting
and caused her throat to
burn,
She felt she would gag because of the sick feeling in
her stomach,
She can recognize
the smell of exhaust from diesel
operated trucks,
the odor emitted from Corn Products Cor-
poration,
and
the odors from the sludge ponds
and Sanitary
District plant,
all of which are different and distinct
from the characteristic obnoxious odor of Fry Roofing.
She was again in the vicinity of Fry Roofing on Wednes-
day, February
24,
1971,
at approximately 10:00 A.M.,
and
2:00
P.
M.
at which times
she observed the following:
The wind was from the
south,
2
—
586
OdOr and smoke,
of the same description
as in para-
graph 3.b.
and 3.c,
above were coming from the Fry plant.
On Wednesday March
24,
1971,
at 10:00 A.M.
and 2:00
P.
M.
and on March
25,
1971,
at 10:00 A.M.
and 2:00 P.M.
she again saw smoke and smelled odor of
the same descrip-
tion as that described in paragraphs 3.b and
3.c above.
On Friday, April
16,
1971,
she was in the vicinity
of
Summit Park, which
is immediately north of and adjoining
the
Fry Co. property,
and observed the following:
Smoke was coming out of the stacks located on the Fry
building, pictured
in Complainants’ Exhibit No.
10.
The smoke had the characteristic Fry odor.
When she walked into the park,
she was enveloped in
the smoke,
as if by fog, which covered the entire basin of
the park
area.
She experienced the following physical effects:
She was
sickened, her stomach was turned,
she had to cough, her eyes
and
throat
burned,
and
she
was
forced
to
leave
the
park.”
On the state of the record,
it is abundantly clear that Fry’s
operation during the years
1970
and 1971
and continuing down to the
present, have caused
a severe burden and nuisance on the community.
Our order will direct Fry to cease its operation until
its pollutional
discharges have been abated so
as to comply with the regulations.
If Fry had pursued the program of emission control it represented it
would follow at the first hearing
in this
case,
it would now un-
doubtedly be in compliance with the regulations and the nuisance
impact would be substantially lessened.
The serious burden placed
on the community by Fry’s uncontrolled operation necessitates
this
course of
action.
IT IS THE ORDER of the Pollution Control Board:
1.
That Lloyd A. Fry Roofing Company cease
and desist
emissions from its Summit operation until such time
as air pollution abatement equipment has been installed
and is properly operating, which eç~uipmentshall bring
Fry’s emissions within the particulate regula.tions,
as set forth
in the Rules and Regulations Governing the
Control
of Air Pollution,
Sections 2-2.11
and 3-3.111.
2.
Fry shall advise this Board when such installation
has been completed.
This proceeding shall remain
open and the Board shall conduct
a further hearing
not less than
30 nor more than 60 days after notice of the
installation of said air pollution abatement equip-
ment in order to ascertain whether odors being emitted
by Fry’s operation have been abated as
a consequence
of the air pollution control equipment installed.
Such further orders shall be issued by
this Board
as
are appropriate in consideration of the hearings.
3.
Penalty in the amount of $50,000.00
is assessed against
Fry for violations
of the particulate emissions pro-
visions of the Rules and Regulations Governing the
Control of Air Pollution,
for failure to
file
a
Letter of Intent and Air Contaminant Emission Reduc-
tion
Program
as
required
by
the
Rules
and
Regulations
Governing
the
Control
of
Air
Pollution,
Sections
2-2,3
and
2-2,4,
and
for
causing
air
pollution
as
defined
within
the
Environmental
Protection
Act,
Section
9.a.
I,
Regina E.
Ryan, Clerk
of the Board,
certify that the Pollution
Control Board adopted the above Opinion this
14
day of October,
1971.
2
*
588