ILLINOIS POLLUTION CONTROL BOARD
February
8,
1990
PETER ARENDOVICH
PATRICIA LISTERNANN
)
Petitioner,
V.
)
PCB 88—127
(Enforcement)
KOPPERS COMPANY,
INC.,
Respondent.
MR. PETER ARENDOVICH
AND
MS. PATRICIA LISTERMANN, APPEARED PRO SE;
AND
MR. CHESTER
R.
BABST III AND MR. JOSEPH
K. REINHART, ATTORNEYS AT
LAW, APPEARED ON BEHALF OF RESPONDENT.
INTERIM OPINION AND ORDER OF THE BOARD BY
(J.
C. Marlin):
This matter
comes
before
the Board
on
complaints
filed
on
August
15,
1988
by
Peter
Arendovich
and
Patricia
Listermann
(Complainants) alleging a violation of Section 9(a)
(air pollution)
of
the
Environmental
Protection
Act
(Act)
by
the
respondent,
Koppers Company,
Inc.
(Koppers)
.
Both com~:1aintswere assigned the
same
docket
number
and
on
October
6,
1988
a
single
amended
complaint was filed by the complainants.
Hearings were
held at the Cicero Town Hall on February
15,
1989 and March 15,
1989.
The town collector and senior trustee of
Cicero
appeared
and
submitted
a
statement
supporting
the
complainants’
position.
All parties filed
post-hearing
briefs.
Facts
The complainants
live to the west of the Koppers facility.
Peter Arendovich has lived at 3725 South 57th Avenue,
Cicero,
for
6
year:
and
Patricia
Listermarin
has
lived
at
3811
South
57th
Avenue,
Cicero,
for
14
years.
The amended complaint alleges that
respondent
Koppers violates
section
9(a)
of
the Act by emitting
strong and irritating odors of tar, creosote,
and moth balls which
interfere with complainants’ enjoyment of home and property.
The complainants’
residential
area
of
Cicero
is
adjacent to
an area of Stickney zoned for heavy industrial
use.
Within three
miles of complainants’ homes are a number of industrial facilities
mostly
located
in
Stickney.
To the east are two oil companies,
several
trucking
terminals,
and
a
garbage
transfer
station.
Directly
to
the
south
of
complainants
is
the
Stickney
sewage
I
fl~—1)7
treatment plant of the Metropolitan Water Reclamation District
Greater Chicago,
a chemical and coke refining plant, and a truckin~.~.
terminal.
Southeast of complainants
is the Koppers manufacturing
facility and three more oil companies.
The Koppers manufacturing facility is located at 3900 Laramie
Avenue,
Cicero.
It
was built
in
1921
and started
in
1922.
The
plant
consists
of
three
facilities;
a
tar
plant,
a
phthalic
anhydride production unit,
and
a polyester resin production unit.
The
oldest unit
is
the tar
plant which
distills
coal
tar
into
carbon pitch
and
creosote.
The second plant
produces
phthalic
anhydride from processes involving naphthalene which is shipped to
the Koppers
plant.
The polyester
resin
production
unit
is
the
newest unit at Koppers and was closed
in the first half
of
1989.
Koppers asserts that all of the units at the Stickney facility are
permitted and in compliance with Illinois environmental standards.
Odor
The amended complaint alleges a violation of Section 9(a)
of
the Act which states:
9.
No person shall:
(a)
cause or threaten or allow the
discharge
or
emission
of
any
contaminant
into
the
environment in any State so as to cause or tend to cause
air pollution in Illinois, either alone or in combination
with contaminants from other sources, or so as to violate
regulations or standards adopted by the Board under this
Act;
Clarification of
the terms used
in Section
9 is provided in
Section 3 of the Act.
A contaminant is defined in section 3.06
as,
“any
solid,
liquid,
or gaseous matter,
any
odor,
or any form
of
energy,
from
whatever
source.”
The
Act’s
definition
of
air
pollution
is found in section
3.02,
which states,
“AIR POLLUTION’
is the presence in the atmosphere of one
or more contaminants in sufficient quantities and of such
characteristics 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.”
In an air pollution enforcement action such as this,
Section
31(c)
of the Act places the burden
of proof
on the complainants.
(Ill.
Rev. Stat.
ch. 111 1/2,
sec.
1031(c).)
To carry that burden
of
proof,
the complainants must show that Koppers has caused
or
threatened
to
cause
air pollution
as
defined
in
Section
3.02.
Since the complainants have not alleged any injury to health or to
property they then have the burden of proving that the alleged air
pollution caused an unreasonable interference with their enjoyment
of
life
and property.
The
Board
determines whether
or not the
burden of proof has been met
in accordance with Section
33(a)
of
I
~).~_ITh
3
the Act.
Section 33(a)
states:
a.
After due consideration of the written and oral
statements, the testimony and arguments that shall be
submitted at the hearing,
.
.
.
the Board shall issue
and
enter
such
final
order,
or
make
such
final
determination,
as it shall deem appropriate under the
circumstances.
Interference
The
Board
finds
that
the
complainants
have
carried
their
burden
of
proving
that
the creosote and naphthalene
odors
from
Koppers have caused an interference with their enjoyment
of life
and property.
The complainants proof that Koppers
is the source
of
the tar odor
failed because
of
the close
proximity
of
other
petroleum related industries.
At the hearing, the complainants descr~bedthe odors and the
impact
the odors
had on
their
lives.
Mrs.
Listermann
testified
that:
A.
Yes,
I
feel
that
basically
the
strong
odors
sometimes have
caused me
——
the way
I
look
at the
question is it has caused me to close my windows, come
inside because the odor itself can produce headaches,
nausea
and
sometimes
irritation
to
the
throat
and
nose.
R.
at 58.
*
.*
*
Q.
Are
there
other
dates
listed
on
your
formal
complaint,
other
dates
that
you have
smelled
odors
from the Koppers plant?
A. Those are only examples. And there are many more.
In
fact,
such
as
Friday,
November
25th,
11:15,
and
yesterday evening at 9:30 pm, also; and those are just
a few.
P.
at 59.
*
*
*
A.
Change in the sense of cancelling out,
no.
Maybe
coming
inside
and turning
on the air
conditioning,
yes.
Q.
But I believe it was your testimony that the odors
have not changed your day to day life style?
A.
No,
except
for the
fact
of
turning
on
the air
conditioning when you don’t really need it,
or coming
inside when
YOU
want to be outside.
B.
at 76
*
*
*
Mr.
Arendovich
also
testified
to
the
source,
nature,
and
effects of the odors.
4
Q.
What made you feel that Koppers was the source of
the problem,
of your problem?
A.
In,
I
believe,
say the
month
of
May,
‘87
or
something like that,
when the Sanitary District shut
down
the
drying
beds,
it
was
suddenly
a
mask,
a
different odor started to be unveiled and there was a
tar odor, naphthalene odor, and creosote odor.
So
I
looked,
I
thought perhaps
there were some
of
the tanks along the canal.
But as I looked closer and
started to look at what are the plants in the area,
I
have
seen
a
tar
processing
plant,
and
I
passed
by
there several times on a private road and the more you
pass
in certain areas the worse
it becc:mes.
So
I parked myself on the outside and stand there
for a few minutes and the odor that was coming out of
the
Koppers
premises,
it
makes
me
nausea
and
just
about vomit in that area.
B.
at 94—95
*
*
*
A.
Because they ask you in what area do you live and
where. do
you
smell
it.
The
wind
is
constantly
changing.
So when the wind blows in my direction,
I
smell
it.
If the inspector comes to my area and the
wind
is
not
blowing
in
my
direction,
he
says what
smell?
There is no smell.
So we are subject to this
wind direction.
P.
at 106
*
*
*
A.
Sometimes you smell it
.
You get mad and you just
walk away from it. But sometimes you feel like writing
it
down.
And
July
5
was
another
from
Koppers,
specifically
.
.
.
And then August
15 was specific
from Koppers.
Then,
say,
later
I just locked myself
in air conditioning.
I don’t want to be out,
unless
I have to go out.
P.
at 121—122
*
*
*
The complainants also spoke extensively of their attempts to
solve the odor problem before a formal complaint was filed with the
Board.
Beginning in
1985, the complainants
filed complaints with
the Illinois Environmental Protection Agency and the Cook County
Environmental Protection Agency
about odors
in their community.
Mr. Arendovich
arranged two public meetings
at Morton College
in
1987.
He invited the IEPA,
the management
of MSD, and politicians
from the area to participate
in these meetings.
Further meetings
were arranged by Mike Orloff of the IEPA,
some at Morton College
and two at the Koppers
facility.
According
to
testimony
at the
hearings,
the
meetings
facilitated
the
exchange
of
information
between Koppers and complain~r~sbut had r~inimal~:aluein solvino
i~S—
fl
5
the problem.
Unreasonable Interference—Section
33(c’
criteria
The Board is permitted to find interference with the enjoyment
of
life
and
property
on
the
basis
of
testimony
describing
the
effects and impact of the pollution.
City of Burbank v. Overnite
Trucking,
PCB 84—124.
The “unreasonableness”
of an interference
is
determined
by referring to
the statutory criteria
of
Section
33(c).
Wells
Manufacturing
Co.
v.
Pollution
Control
Board,
73
Ill.2d 226,
383 N.E.2d 148,151
(1978).
Section 33(c)
states:
c.
In making its orders and determinations,
the Board
shall
take
into
consideration
all
the
facts
and
circumstances
bearing
upon the
reasonableness
of
the
emissions,
discharges,
or deposits involved
including,
but not limited to:
1.
the
character
and
degree
of
injury
to,
or
interference
with
the
protection
of
the
health,
general
welfare
and
physical
property
of
the
people;
2.
the
social
and
economic
value
of
the
pollution
source;
3.
the suitability or unsuitability
of the pollution
source
to
the
area
in
which
it
is
located,
including the question of
priority of
location in
the area involved;
4.
the
technical
practicability
z~nd
economic
reasonableness
of
reducing
or
eliminating
the
emissions,
discharges
or
deposits
resulting
from
such pollution
source;
5.
any economic benefits accrued by
a noncomplying
pollution source because of its delay in compliance
with pollution control requirements; and
6.
any subsequent compliance.
The Act does not however require the complainants in an enforcement
action to provide evidence for each of the criteria.
Processing
& Books,
Inc.
v.
Pollution Control Board,
64 Ill.2d 68,
75—77,
351
N.E.2d
865
(1976).
Nor
is the Board
required to find against
a
respondent
on all Section 33(c)
criteria before deciding against
the respondent.
Wells,
73
Ill..2d 226,
383 N.E.2d 148,151
(1978);
Processing
& Books,
64 Ill.2d 68,
75—77,
351 N.E.2d 865
(1976).
As for criteria
(1) of Section 33(c),
it is apparent from the
testimony
in the record that
the odors have a significant year—
round, detrimental
effect on the complainants’
enjoyment of life
and property.
The odors tend
to interfere
with both indoor and
outdoor
activities
and
are
unpredictable
due
to
shifting
wind
direction.
The normal running of the household is disturbed by the
otherwise
unnecessary
closing
of
windows
or
use
of
the
air
conditioner.
Headaches and irritation
of the nose and throat are
serious interferences with the enjoyment
of
life.
The complained
1fl8—1 1
6
of
odors
obviously
cause
a
disruption
in
the
enjoyment
of
the
normal
life
of
the
complainants.
The
Board
finds
that
the
interference suffered by the complainants
is substantial and goes
beyond trifling interference, petty annoyance, or minor discomfort.
Processing
& Books, Inc.
v. Pollution Control Board,
64 Ill.2d 68,
351 N.E.2d 865
(1976).
With reference to criteria
(2),
the Board finds that Koppers
has significant social and economic value,
although that value
is
diminished by the continuing distress it has caused to its citizen
neighbors.
Mr. Lawrence Flaherty,
vice president and manager
of
tar operations,
testified
on the economic impact of the Koppers
plant.
He stated that in 1988, Koppers’ Stickney facility employed
200 people, paid
in excess of six million dollars
in total wages
to
those employees,
spent
dpproxirnately
four million
dollars
on
outside labor and materials,
spent another four million dollars on
utilities in Illinois, paid $268,000 in property and school taxes,
and made
a profit
of
approximately six million dollars.
R.
at
185—187,
195.
In addition,
Koppers has made the chemical
fire
truck
at
the
Stickney
plant
available
to
the
Stickney
Fire
Department
and
it
contributes
an
annual
monetary
award
to
charities.
P.
at
188.
Mr. Dennis Callan,
assistant plant manager,
testified to the
nationwide impact of the Stickney facility.
After describing the
processes and work done
at the
facility,
Mr.
Callan stated
that
Koppers
produces
28
percent
of
the
American market
for
carbon
pitch,
30
percent
of
the American market
for
creosote,
and
17
percent of
the domestic market
share of
phthalic anhydride.
R.
at 210—211.
After evaluating
the testimony
for criteria
(3),
the Board
finds that Koppers
is suited to its location and has priority of
location
over
the complainants.
Mr.
Callan testified that
the
location of the Stickney plant allows access to the Sanitary and
Ship Canal, the railway system, and the interstate highway system.
These systems are vital in the transportation
of raw materials and
finished products.
Mr.
Callan also
presented pictures
showing the construction
of
the
Koppers
facility
in
1921.
The
area
surrounding
the
construction
site
at
that
time
was
a
mix
of
residential
and
prairie.
Specifically,
the
complainants’
neighborhood
was
grassland
in
1921.
B.
at
212,
215.
Although the Board agrees
that Koppers enjoys priority of
location, that
is not an absolute
defense to a claim of air pollution.
Wells Manufacturing Co.
v.
Pollution Control Board,
73 Ill.2d 226,
383 N.E.2d 148
(1978).
The fourth criteria
of Section
33(c)
requires an evaluation
of
the
technical
practicability
and
economic reasonableness
of
reducing the pollution.
Testimony from both sides referred to a
“Koppers’
proposed
control
strategy”
which
was
introduced
by
7
Koppers at a meeting between the IEPA, the community,
and Koppers.
P.
at
114
According to Dennis Callan,
assistant plant manager,
the strategy “lists possible places where emissions can come from,
the control strategy,
and any action that we were taking at the
time or proposing to take.”
At a cost of approximately $600,000,
the
control
strategy
would
maintain
or
improve
air
emission
controls
at
Koppers.
P.
at
231-232
The
Board
finds
that
Koppers’
own
testimony
supports
a
conclusion
and the Board
so
finds,
that
it
is
neither
technically
impracticable
nor
economically unreasonable
to reduce
its air pollution emissions,
in that Koppers had plans to
implement control technology
at the
Stickn?y
facility in the immediate future.
The
Board
has
some
difficulties
in
the
consideration
of
criteria
(5)
in a Section
9(a)
setting.
Evaluating the economic
benefits
accrued
from
delay
affects
the
issues
of
whether
a
violation occurrcd
and the
imposition
of penalties.
The record
clearly indicates that Koppers was less than diligent in responding
to
the odor complaints
and that
it would
not be
unreasonable
to
speculate
that
economic benefits
accrued.
However,
the record
contains little for the Board to discern the nature of any economic
benefits.
Complainants
did
not
raise
this
issue
directly
in
seeking
a finding of violation and did not seek the imposition of
a penalty.
Under the circumstances, the Board finds that criteria
(5) considerations merit little discussion.
The Board will also give
little weight to considerations
of
criteria
(6).
In
a Section
9(a) complaint,
subsequent compliance
has little significance
in making
a determination as to whether a
nuisance
violation
occurred.
Koppers
stated,
in
unrebutted
testimony,
that it had not been in violation of the Act nor had the
plant’s emissions been above the permitted levels.
P.
at 309
The
Board
f~nds that
these
statements
have
little
weight
in
the
determir~tion of
a Section 9(a)
violation.
Conclusion
Based on the Board’s findings of substantial interference with
the enjoyment of life and property, and after consideration
oii~ the
criteria listed
in Section
33(c),
the Board
finds that the odor
emissions from the Koppers facility, particularly the emissions of
creosote
and
naphthalene,
are
unreasonable
and
constitute
a
violation of Section
9
of the Environmental Protection Act.
Due
to
circumstances
created
by
the
respondent,
the Board
finds
it
necessary
to
issue
an
Interim Opinion
at this
time.
A
detailed final order describing the steps necessary to rectify the
violation of the Act is not possible because of a deficiency in the
record.
Specifically, the record lacks the control strategy plan
that (oppers
asserted would control odor
emissions.
The control
strategy plan was identified
as Respondent’s Exhibit No.
3 at the
hearing but was not received by the hearing officer and is not in
the record before the Board.
1O~--i3
8
Due to these deficiencies, the Board
is ordering Koppers to
prepare
a
report
containing
a
copy
of
the
Exhibit
3
control
strategies plan,
informing the Board
of the measures taken since
the hearing to rectify the situation, and providing the Board with
a detailed plan of what Koppers will
be
doing
in the future to
rectify
the
situation.
The
report
should
be
prepared
by
a
competent
individual
or
firm and should evaluate all methods
of
control
(including
those
methods
that
have
been
and
will
be
implemented).
Each
control option evaluation should include the
anticipated pollution reduction,
the cost
of
implementation,
and
an estimate of a reasonable time for implementation.
The
Board
notes
that
testimony
was
heard
relating
to
an
accident at
a Koppers loading site.
The record stated that a
23
thousand gallon spill
of creosote occurred because “no one was in
the immediate
vicinity”
during the time
of
the overflow.
R.
at
263—265
It
is difficult for the Board to conceive that such an
accident
is unavoidable given that
a variety of shut
off,
check,
and
spill
control
technology
is
available,
including
the
low
technology
option
of
hiring
someone
to
watch
the •loading
operations.
The Board intends for this matter to be addressed in
the report required by this Interim Order.
The
Board
will
retain
jurisdiction
in
this
case
pending
receipt of the report,
and final disposition of this matter.
The
report
is
to
be
filed
with the
Board,
Mr.
Arendovich,
and
Ms.
Listermann,
not
later
than
April
25,
1990.
The
Board
will
entertain any appropriate motions filed within
30 days after the
filing of Koppers’
report.
The Board will
issue
a
final
order
regarding compliance as soon as possible thereafter.
This Interim Opinion constitutes the Board’s initial findings
of fact and conclusions of law in this matter.
The Board declines
to impose
a penalty at this time.
ORDER
1.
The Board finds that Koppers Company,
Inc. has violated
Section 9 of the Environmental Protection Act.
2.
Koppers
is
Ordered to
submit to
the Board and
to each
complainant,
not later than April
25,
1990,
a report on recently
implemented, planned, and potential odor emission reduction methods
at the Stickney facility consistent with this Opinion.
The report
shall comment on the expected effectiveness of the methods.
3.
The Board will retain jurisdiction in this matter pending
receipt of the report.
Unless a motion
is received during the
30
day period,
the Board will proceed to issue
a final order.
9
IT IS SO ORDERED.
Board Members J. Dumelle, P. Fleinal, and B. Forcade dissented.
Board Member 3. Theodore Meyer concurred on the Opinion only.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the above
Order
was adopted
on
the
___________
day
of
_________________,
1990,
by
a
vote
of
I
Control Board
lOS—iS