ILLINOIS

POLLUTION

CONTROL BOARD

June

16,

1988

RUBY and EDWARD HARGROVE,

and

JOYCE and EUGENE FOLTZ,

)

Complainants,

v.

)

PCB 87—19

TAMMSCO,

INC.,

ALEXANDER

COUNTY COMMISSIONERS, DONALD

JORDAN TRUCKING COMPANY,

)

and MARQUETTE GRAVEL COMPANY,

Respondents.

MR. JAMES W.

SANDERS AND MS. LEE

ELLEN STARKWEATHER, JAMES W.

SANDERS

AND ASSOCIATES,

APPEARED ON BEHALF

OF COMPLAINANTS;

MR. GEORGE J.

KALAPOS,

JR., TAMMSCO, INC.,

APPEARED ON BEHALF OF

RESPONDENT TAMMSCO,

INC.;

MR. MARK

H.

CLARKE,

ALEXANDER COUNTY STATE’S ATTORNEY APPEARED ON

BEHALF OF RESPONDENT ALEXANDER COUNTY COMMISSIONERS.

OPINION AND ORDER OF THE BOARD

(by J.D.

Durnelle):

This matter

comes before the Board upon complaints

filed

by

Ruby and Edward Hargrove, Joyce and Eugene Foltz,

and John Barton

on February 23,

1987 against Tammsco,

Inc.

(Tammsco), Alexander

County Commissioners

(County),

Donald Jordan Trucking Company

(Jordan),

and Marquette Gravel Company

(Marquette).

Hearing was

held October

14,

1987,

at the Village Hall

in

Tamnis,

Illinois.

Present at hearing were Complainants Ruby and Edward

Hargrove and Joyce

and Eugene

Foltz.

Complainant John Barton did

not attend hearing.

On January 20,

1988, Respondent Tammsco

filed

a motion pursuant

to 35

Ill. Adm.

Code 103.220 requesting

that default enter against John Barton

as

a result of his failure

to attend hearing.

On February 25,

1988,

the Board granted

Tammsco’s motion

for default against John Barton.

The remaining Complainants,

the Hargroves and

the Foltzs,

are residents

of Alexander County

in Southern Illinois,

near the

Village of Tamms.

They live one—quarter mile apart on

a gravel

road known as

the McDaniel’s School Road.

Respondent Tammsco

operates

a fifty year old silica processing plant employing

35

people

in Tamms,

Illinois.

Respondent’s plant receives the

silica from its mine located near the

end

of McDaniel’s School

90—101

---

—2—

Road by means of trucks which traverse McDaniel’s

School Road.

The Complainants allege that as

the trucks travel past their

homes,

the trucks cause dust

to be emitted

into the

air,

thereby

causing

a violation of 35 Ill.

Adm. Code 201.141.

For the reasons

described

below,

the Board

finds

that

Complainants have failed to make

the requisite showing

that

Respondents have violated

35

Ill. Adm. Code 201.141.

Factual Background

The relevant uncontested

facts are

as follows.

Alexander

County is

a small,

rural county located at

the most southern tip

of

the State.

Alexander County has

a low tax base.

Within the

County’s boundaries

lie approximately 200 miles

of gravel roads

which are

(a)

comprised of

the same types

of materials as gravel

roads

in neighboring counties and

(b) maintained

in compliance

with the standards set by the Department

of Transportation

of the

State

of Illinois.

Alexander County does not generate sufficient

revenue

to pave

(i.e.,

“oil and chip”, blacktop)

each

of

~he 200

miles

of gravel roads within its boundaries.

(R.

at

39).

The Complainants

claim to have first noticed

a dust problem

in the summer of

1986.

They contend that during the spring

thaw

of 1986 the gravel road became impossible for automobiles

and

trucks

to travel and that

it needed repair.

They further

contend

that Tammsco, having first received the authority

to do so from

the County of Alexander,

proceeded

to repair

the road.

As part

of its repair,

Tamn-tsco dumped two loads

of “white flour like

silica dust”

on

the road

(Camp. Br.

at

2).

After

that, Tammsco

allegedly dumped several

loads of

larger pure white silica rock

from

the silica mine.

According

to Complainants,

the rocks were

So

large

that passenger cars could not travel the road,

and that

as

a result,

the County put a finer gravel on top of

the large

silica rock.

The Complainants assert that when Tammsco dumped the

“silica”

in the road,

the silica was wet.

Later

in the Spring,

the silica dried

and the dust problem began.

The Complainants

described

the dust

as being

a

“snow white and flour

white

material”

that was emitted whenever Respondent’s

trucks drove

east.

Mr. Hargrove testified

that the dust damaged

his property,

i.e.

killed fruit

trees,

ruined the siding of his recreational

vehicle,

damaged flowers,

rugs,

furniture,

refrigerator, and an

air conditioner,

and damaged his health.

Mr. Hargrove testified

1 Citations

to the record are as

follows:

1)

references

to the

hearing transcript are

“R.

at

___“;

2)

references

to Complainants

Brief are

“Comp.

Br.

at

___“;

3)

references

to Tammasco’s Brief

are

“Taminsco Br.

at

___“;

and

4)

references

to County Brief are

“County Br. at

90—102

---

—3—

that before Respondents dumped the material

in the road he had

no

problem breathing but that after

the material was dumped, he

noticed breathing problems.

Mr. Hargrove further

testified that

he went

to a doctor,

who performed certain

tests.

The Board

notes

that

the

results of these tests have not been made part of

the record.

Mrs.

Foltz

testified that the dust has damaged her property

as well.

According

to her

testimony,

Mrs.

Foltz

has for

the past

few years had a vegetable business upon which she realizes an

income.

Mrs. Foltz characterized the summers of

1985 and

1986

as

being

“very good”

years (apparently meaning net incomes

of

approximately $6,000.00 per year).

However,

the summer

of

1987

she characterized as

a

“bad”

year, with

income about one—half

that of previous years.

Mrs.

Foltz attributed

the cause

of the

bad year

to

the dust

that

is the subject

of this action.

Mrs.

Foltz’s statement regarding

the “cause”

of

the dust,

i.e.

Respondent’s dumping material

in the road during repairs,

is

consistent with

the testimony of Mr. Hargrove.

However, Mrs.

Foltz

is

less certain

as

to the type

of material

that was

dumped.

She claims that the dust almost killed the vegetable

plants by beating holes

into the leaves,

and by covering the

leaves with dust.

Mrs. Foltz also claims

that the dust ruined

her carpets, and caused damage

to her

air conditioner

and

television speakers.

Respondent Tammsco’s version of

the facts,

although similar

to Complainants, presents certain differences from that set forth

above.

Tammsco admits that

it owns and operates

a silica

processing plant

in Tamms,

Illinois and

a mine located

near

the

end of McDaniel’s School Road.

Tammsco transports

its silica

from the mine

to

the plant via two trucks which travel over

McDaniel’s School Road.

Taminsco contends that this road has been

used

to haul

these materials

for approximately the past

20

years.

Tamrnsco states

that during a typical

day,

Tammsco trucks

make seven round

trips

(from the mine

to

the plant

to the mine)

between

the hours of

6:00 a.m.

to 6:00 p.m.,

and

that such

activity constitutes approximately 14

of all traffic

on the road

during those hours.

Tamnisco further states that while there

is

an alternate

route

that could be

taken,

such route

is

approximately

5 miles

longer than the present route

(twice

as

long)

over similarly unpaved roads and would result

in doubling

Of

the transportation

time,

road dust generation,

as well

as

substantially increasing plant operation costs and product

time.

Tammsco admits

to undertaking some repairs of

the McDaniel’s

School Road.

However, Tammsco testified and presented certain

evidence that such repairs occurred

in the Spring

of

1985,

and

not 1986.

Tammsco stated

that as

a result

of

the winter

thaw,

the McDaniel’s School Road became undermined,

and

that its trucks

could not traverse

the road.

Tammsco stated that

it requested

the County

to repair

the road.

Tammsco states that

in response

90—103

---

—4—

to its request

the County indicated that in view of

all the

overwhelming road problems throughout

the County (also caused by

the spring

thaw),

the County would be unable

to repair

the road

for quite some

time.

According

to Tammsco,

the County did,

however,

state

that Tammsco could at its own expense

repair

the

road.

Thereafter,

Tarnmsco undertook

to repair McDaniel’s School

Road.

At hearing,

Tamnisco presented purchase receipts dated

February 26,

1985 for approximately 110

tons

of chert

from the

Mark Graff Quarry and March

2—4 for approximately 200 tons of

limestone material from the Columbia Quarry

to indicate what type

of material

it placed

in the road.

(Respondent’s Ex.

No.

1

and

R.

158—159).

Tamnisco states that these two quarries were the

same quarries used by Alexander County both during

and prior

to

1985

for

road building material.

Tamnisco presented testimony

that both

chert,

a

form of silica,

and limestone are commonly

used

road building materials

in the County.

Tammsco further

stated that no material,

i.e.,

silica,

from

its mine was used

in

the road

repair project.

To

support this claim, Tammsco stated

that the silica

it mines

is

of greater value

to

it as processed

product rather than as

road material.

Tammsco further stated that

after

it placed these materials

on

the road Complainants complained

to the County that the road

was still

too bumpy.

Following these complaints,

the County came

out and graded the road,

but its efforts still did not

satisfactorily resolve the problem.

Thereafter,

the County

placed one and one—half

to two inches of

limestone over the

entire surface

of the

road.

Tamrnsco states that

it was at this

time that the complaints about

the dust began.

Tammsco stated

that after

it learned

of

the dust complaints,

it commenced a

policy of covering

its trucks with tarps to prevent

the mined

material

(silica)

from falling out of

the trucks.

Tammsco also

stated that

it instituted

a speed reduction policy limiting its

trucks

to a speed

of

20 mile per hour

(m.p.h.)

even though

McDaniel’s School Road has

a posted speed

limit of

30 in.p.h.

Finally,

as regards the dust composition,

Tanimsco presented

an expert witness,

a geologist who

is employed by the Unimin

Corporation, Tammsco’s corporate parent.

Tamrnsco’s expert

Witness,

Mr. William Shalter, testified

that

it was his expert

opinion that the physical makeup of the McDaniel’s School Road

Was

(a)

typical of

the geology of other

unpaved roads

in

Alexander County,

(b)

consistent with the geology

of

the Mark

Graff

and Columbia quarries, and

(c)

inconsistent with the

geology of the Tammsco mine.

Mr. Shalter also testified that he

conducted certain acid

(vinegar)

tests and that the results

of

the tests

indicated that the dust on the foliage near

the

road’s

edge was predominantly limestone.

90—104

---

—5—

The County presented a position similar

to Tammsco’s.

However,

the County noted

that when Complainants contacted the

County about

the dust problem,

the Complainants demanded that the

quarter—mile section of McDaniel’s School Road near

their homes

be paved.

The County informed the Complainants that insufficient

funds existed

for

the project and

that

is was the County’s policy

to pay a portion of the paving expense

if the

local resident(s)

pay

a portion.

The County stated,

and Mrs. Hargrove’s testimony

supported,

that the Complainants rejected

this offer.

Argument

Complainant’s Complaint alleges that Respondents have

violated

a Board air pollution regulation, specifically 35

Ill.

Adm. Code 201.141, which

states:

No person shall

cause or threaten or all9w the

discharge or emission

of any contaminant

into

the

environment

in

any

State

so

as,

either

alone or

in combination with contaminants from

other

sources,

to

cause

or

tend

to cause

air

pollution in Illinois,

or

so

as

to violate the

provisions

of

this

Chapter,

or

so

as

to

prevent

the

attainment

or maintenance

of

any

applicable ambient air quality standard.

Section

31(c)

of the Act states

in pertinent part that:

“in hearings before the Board under this title the

burden shall be on the

...

complainant

to show either

that the respondent has caused

or threatened

to cause

air or water pollution or

that the respondent

has

violated

or threatens to violate any provision of

this

Act or any rule

or regulation of

the Board or permit or

term or condition thereof.”

Thus, Complainants clearly bear

the burden of proving that

Respondents have caused the discharge or emission of

a

contaminant

into the environment so as

to cause air pollution.

Complainants

argue first that there

is “no doubt that the

dust which plagues

them,

regardless

of whether

it

is silica

dust

or limestone,

is

a contaminant.”

Camp.

Br.

at

5.

The

County argues that Complainants

“completely failed

to show that

the chert

and limestone materials used by the County on McDaniels

School Road are

‘contaminants’.”

County Br.

at

6.

2 “Contaminant”

is defined by the Act as

“any solid,

liquid, or

gaseous matter,

any odor or any form of energy,

from whatever

Source.”

90—105

---

—6—

On this point,

the Board agrees with Complainants

—--

the

dust complained

of,

whether

it be chert,

limestone,

or silica,

is

obviously “solid” matter from some source.

It therefore falls

within

the statutory definition

of

“contaminant” set forth

in

Section 3.06 of

the Act.

Thus,

the dust in issue is

a

contaminant.

Having stated

that,

however,

the Board

is not

persuaded

that

the material dumped

in the road was “silica”.

In

fact,

the evidence presented by Respondent Tammsco,

indicates

that the fill material was chert and limestone, both common road

surface materials.

Moreover,

the record does not indicate what

difference

it would make even

if

it were silica.

The next question

is whether the dust that is caused by

vehicles traveling over

the road falls within the prohibition

relating

to

the “discharge

or emission

of any contaminant into

the environment

...

so as

...

to cause or tend to cause air

pollution”

set forth

in

35

Ill. Adm. Code 201.141.

“Air

Pollution”

is defined by the Act as:

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.

The Board is not persuaded

that the record supports

a

determination

that the road dust

is “injurious

to human, plant,

or animal

life,

to health, or

to property.”

Allegations alone

are not enough:

evidence

to support such

a conclusion has not

been submitted

into the record.

However,

the Board does believe

that Complainants have

demonstrated

interference

with

the

enjoyment of

life or property.

The question then becomes whether

or not the interference

is unreasonable.

Tihe

unreasonableness

of

an alleged air-pollution interference must

be determined by

the Board with reference to the Section 33(c)

criteria.”

Incinerator

Inc.

v.

PCB, 59

Ill.

2d 290, 319 N.E.2d

794, 797

(1974).

Section 33(c)

of the Act requires that the Board

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;

90—106

---

—7—

4.

the

technical practicability and economic reasonableness

of reducing or eliminating

the emissions,

discharges or

deposits resulting from such pollution source;

and

5.

any economic benefits accrued by a noncomplying

pollution source because of

its

delay

in compliance with

pollution control requirements.

With respect to factor

(1), Complainants argue

that the

testimony clearly indicates that the injury

is severe and

substantially interferes with the protection

of Complainants’

health,

general welfare,

and property as alleged

in the facts

above.

Respondents argue that no other residents living along

the

road have either filed

a complaint or appeared

as

a

witness.

Moreover,

the County states that these Complainants are

“the first

to ever assert injury from a dusty gravel

road.”

County Br.

at

7.

Finally, Respondents note that Complainants’

testimony relating

to damages consists solely of personal

knowledge and opinion and is not supported by expert testimony

or

other objective means.

Without taking

a position as

to whether these Complainants

are the first ever

to assert

injury from

a gravel

road,

the Board

believes

that Complainants do suffer injury

to their property

caused by dust from the road.

The Board recognizes that dust in

sufficient quantities can damage electrical appliances, curtains,

carpets, fruit and vegetable plants,

to name but

a

few household

items, and believes that such damage has occurred

here.

However,

the Board cannot find

that the character

and degree

of injury

Presented

in this case

is any more extreme than is suffered by

any other gravel

road resident.

It

is only logical that gravel

roads cause more dust

than paved roads.

Those who live on or

near gravel

roads should reasonably expect to endure dustier

conditions.

In

a real sense,

the dust goes with the territory.

However,

that

is not to say that dust resulting from

inappropriate or

improperly applied surface materials cannot

result

in

a violation.

That just is not

the case here.

Complainants state with respect

to factor

(2)

that the

primary source

of the pollution is the road surface,

which

is

activated by the usage of heavy trucks.

Complainants argue that

while there may

be some economic value regarding

the usage by the

trucks

of the road,

there

is

no particular social

or economic

value to the road surface

in question.

Respondents

argue that

the road serves

the public

in general as

a means for

transportation and that Tammsco’s use

is

less

than 14

of total

Usage.

Tammsco argues that the road provides

a necessary and

efficient transportation link between

the Tammsco plant

and its

mine site,

which provides employment

for

its

35 area people.

90—107

---

—8—

The Board must agree with Respondents.

The value of the

road is obvious.

It provides

a means

of travel and

transportation of goods

and services to and from the area,

not

only

for

Tammsco,

but

also

for

the

Complainants

and

the

public

as

a whole.

The Board cannot accept Complainants’ argument

that the

“road surface” has no social

or economic value.

The

road surface

is

the road.

That the County can afford

to provide and maintain

only a gravel

road

is unfortunate,

but the Board believes that

the benefits of providing

the gravel

road clearly outweigh the

burdens.

With respect

to factor

(3), Complainants argue

that the

road

surface has no particular suitability

to the area

in question and

that the homes

of the residents were

in existence “prior

to the

time

this particular road surface, which

is

in question,” was

placed on the road.

Respondents argue

that the unpaved

road

is

not only suitable, but also

typical

of roads

located

in the area

and that the materials are taken from local quarries.

Also,

Tamrnsco argues that both the use of

the road and the Tamrnsco

plant predate the Complainant Foltz’s vegetable business.

The Board does

not believe that the record supports

a

finding that the surface

of McDaniel’s School Road differs

in its

geological composition

from that of other gravel roads

in

Alexander County,

or any other Counties

for that matter.

Further,

the record does not support a finding that the

geological constituents of

the road,

i.e.,

chert,

limestone, are

unsuitable

to the area.

Thus,

the Board cannot find that this

road or

that this road surface

is unsuitable to the area

in which

it

is located.

Finally, with respect to factor

(4), the Complainants, while

recognizing

the approximate cost of $7,000 per mile of

blacktopping, argue

that since they live only one—quarter

of

a

mile apart,

“the road could be asphalted

in front

of

arid between

their homes at

a minimal cost when compared

to the injuries they

are suffering”

(Comp.

Br.

at

7).

Further, Complainants suggest

that the trucks could

take an alternate route

that would

not

significantly extend this travel

time or mileage.

Respondents

argue that blacktopping the one—quarter mile area in question is

not feasible in that such action would establish

a precedent of

great cost to the County with respect

to

its many miles of

unpaved roads.

The County estimates that the cost

to its

taxpayers

of paving all

its

roads would exceed $1,400,000 not

including the cost of maintenance.

Finally, Tammsco argues

that

it

is economically unreasonable

to require

rerouting of

its

trucks

in light

of the small number

of complaints having

“dubious

and disputed damage claims” and the increased costs

arid

production time losses associated with the alternate route.

On this point,

the Board concurs with Respondents.

While

blacktopping the quarter-mile section of McDaniel’s School Road

90—108

---

—9—

in question would appear to solve Complainants’

dust problems,

this solution ignores

the precedential impact such action would

have not only on Alexander County but also on all other counties

responsible

for gravel

roads.

The County

estimates a cost

of

$7,000 per mile to pave gravel roads.

This estimate is unrefuted

in the record.

Although the record

is

silent as

to the number of

miles of

gravel road abutting private property,

the Board is

inclined

to believe that

to require paving

in this instance would

establish

a precedent that counties simply cannot afford.

Moreover,

as to the alternate

route, Complainants have not

demonstrated that the alleged reduction

in dust would justify

the

increased costs and production time losses

to Tammsco.

Finally,

the Board notes

that the record indicates that Tammsco has

already made good faith efforts

to reduce

the dust problems by

placing tarps over

its

trucks and requiring speed

reduction on

McDaniel’s School Road.

It thus appears that Tammsco has already

accomplished what could reasonably be required of

it.

The Board

trusts

that Tammsco will maintain its dust—reduction efforts on

a

permanent basis.

In short,

the Board finds that the interference with

the

enjoyment

of

life or property to Complainants

is not unreasonable

in light of all the circumstances and considerations discussed

above.

Thus,

Complainants have not met their burden

of proving

that Respondents have caused or threatened or allowed the

discharge or emission of any contaminant into the environment so

as

to cause air pollution or

a violation of the Act or Board

regulation.

The Board sympathizes with

the Complainants’

situation,

i.e.,

living with the dusty effects

of

a gravel

road.

However,

the Board cannot find that, based

on the evidence

in the record, any violation of the Act

or Board rule exists.

This Opinion constitutes the Board’s finding

of fact and

conclusions

of

law in

this matter.

This matter

is dismissed:

the Clerk

is directed

to close

the docket in this proceeding.

IT IS SO ORDERED.

I,

Dorothy

M. Gunn,

Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the

______________

day

of

~

,

1988 by

a vote

of

7—o

.

(7

Ill

Control

Board

90—109