ILLINOIS POLLUTION CONTROL BOARD

April 21, 1988

WILLIAM AND DELORES CARTER,

Complainants,

and

LEROY AND MARGUERITE STANLEY,

Intervenors.

v.

)

PCB 83—132

DUNN COMPANY,

Respondent,

FINAL ORDER OF THE BOARD (by B. Forcade)

This matter comes to the Board on an August 5, 1983,

complaint filed by William and Delores Carter (hereinafter “the

Carters”), against Dunn Company, a Division of Tyrolt, Incor-

porated (hereinafter “Dunn”). The complaint claimed that emis-

sions of dust and odors from Dunn are causing a violation of

Section 9 (a) of the Environmental Protection Act, Ill. Rev.

Stat. 1985, ch. lll~-/2, par. 1009(a) (hereinafter “the Act”).

Hearings were held October 8, 1986, and February 23, 1987. No

testimony was heard at the October 8, hearing. Post hearing

comments were filed by the Carters on March 3, 1987, and April 9,

1987.

By its August 6, 1987 Opinion and Order, this Board found

that odor and dust emissions from Dunn impacted the Carters, that

those emissions constituted a frequent and severe substantial

interference with the enjoyment of life and property, and that

this interference was unreasonable as to fugitive dust

emissions. The Board found that the interference was not

unreasonable as to process dust emissions, and deferred its

judgment as to the unreasonableness of the odor emissions pending

further information from the parties. The Board based its

decision on the reasonableness or unreasonableness of the

emissions on the applicable statutory criteria:

1.  The character and degree of the inter—

fe r ence;

2.  The social and economic value of the Dunn

operations;

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3.  The suitability or unsuitability of the

Dunn plant to its location, including

whether it or the adjacent residential

area had priority of location; and

4.  The technical practicability and economic

reasonableness of reducing or eliminating

the Dunn emissions.

This Board did not evaluate the economic benefits derived by Dunn

through any non—compliance. Ill.Rev.Stat. ch. 1111/2, Section

1033(c) (1988).

This Board ordered Dunn to submit a report by November 5,

1987 on its present operations and outlining methods for reducing

its dust and odor emissions. Dunn was to submit a detailed

description of its facility and operations, including the

locations and types of all existing pollution control

equipment. The report was to describe all possible sources of

fugitive dust emissions and outline past and prospective methods

for control. It was also to describe all possible sources of

odor emissions and describe methods for their reduction. This

Board allowed the Carters thirty days to submit their responses

to the Dunn report and retained jurisdiction pending this Final

Order. For additional description of the facts of this case, see

the August 6, 1987 Opinion and Order.

Dunn Report and Follow—Up Responses

In its report submitted October 22, 1987, pursuant to the

August 6, 1987 Opinion and Order, Dunn included a plan of its

facilities and a summary description of its operations. The

Carters’ home is indicated as about 12 feet north of the north

boundary of the Dunn plant, near where Dunn stores sand and

gravel. This storage area is unpaved. A 12—foot high windbreak

fence separates the two properties. The Dunn plant baghouse is

about 70 feet south of the north property line abutting the

Carter property. The Dunn open—topped material hoppers are about

50 feet south of this line. Another 15 feet immediately south of

the material hoppers and about 90 feet from the Carter property

is a hooded conveyor transfer point. About 100 feet south of the

Carter property are two elevated finished product silos at which

truck loading occurs, and between 20 and 50 feet south and east

of these silos are heated tanks for storage of asphaltic

cements. The map indicates that the truck route through the

plant enters from the west gate, proceeds in a southwest

direction to the product silos, proceeds east about 90 feet, then

turns north to exit the plant on the city street about 20 feet

east of the Carters’ residence. The intervenors Stanleys’ home

is indicated as 258 feet north of (three houses and one Street

away from) the north boundary of the Dunn plant.

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Dunn indicates that normal plant operations occur between

7:00 a.m. and 4:30 p.m. During an average day, the plant

receives about 30 to 40 truckloads of sand and rock and one or

two truckloads of asphaltic cement. On such a day, about 30 to

40 truckloads of bituminous concrete are shipped out. On days of

peak operation, the plant may receive and ship up to 80

truckloads each of aggregate material and finished product and

receive three loads of cement. Minimum days might only involve

the shipment of 10 truckloads of product, with no materials

receipts. Normal operations occur between March 15 and November

30 from Monday through Friday, with work on Saturdays occurring

only two or three times a year.

Dunn stated that truck traffic through unpaved areas of the

yard, dumping rock from trucks, pushing rock into stockpiles,

endloader traffic from stockpiles to open—topped hoppers, dumping

rock into those hoppers, and a conveyor transfer point produce

its fugitive dust emissions. To control these emissions, Dunn

installed a 12—foot high windbreak fence along its northern

boundary line, immediately between its material storage area and

adjoining properties, including the Carters’. Dunn has also

installed open—topped windshields around its material hoppers,

installed a dust hood around the conveyor transfer point, and

established a routine for oiling and wetting the traffic areas of

its stockpile area. The record indicates that Dunn paved the

traffic areas of its plant and commenced monthly sweeping of the

paved areas and aggregate stockpiles some time after December,

1982. After that time, it also began monthly applications of

road oil to the unpaved areas as part of its fugitive

particulates control program submitted to the Illinois

Environmental Protection Agency (“Agency”) (Resp. Ex. 12).

Dunn believes that paving the entire drive and stockpile

area and maintaining traffic areas free from dust by sweeping or

the use of a vacuum truck should reduce dust emissions from those

sources. Dunn also proposes extending and enclosing the tops of

the open—topped hopper hoods to minimize those emissions. It

will also extend its 12—foot windbreak fence around the east

boundary of its stockpile area. The prevailing wind is from the

southwest as noted by Dunn.

Dunn stated that its odors emanate from its asphaltic

cements, and not from its aggregate materials. These could come

from the vents of Dunn’s heated tanks and from truck loading from

the finished product silos. Dunn proposed constructing an

aspirated hood under the silos to catch fumes released during

truck loading operations, and venting its heated cement tanks

through activated carbon filters.

Dunn asserted that it would implement these proposed

improvements to continue its operations, but that they would take

the company to the limit of economic viability. It requested

definitive Board action so it could determine a course of action.

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The Carters responded to the Dunn report on November 4,

1987. They assert that trucks delivering sand, rock, and

asphaltic cement and those hauling finished product enter the

Dunn plant from the north, near the Carter home, as well as from

the west, as asserted by Dunn. They also assert that Dunn

operations frequently begin at 4:30 a.m. and extend to as late as

12:00 p.m., contrary to the Dunn assertions. The Carters

complain of the plant noise awakening them at early hours, the

fact that the windbreak fence abutting their property blocks

their light, and that the fence does not contain dust. The

Carters feel nothing could contain the dust generated by the

handling of dry materials. They state that the southwest wind

picks up dust from the aggregate stockpiles and blows it into the

neighborhood to a distance of three blocks, despite the windbreak

fence. Odors are also evident in closed homes up to a block away

from Dunn’s plant. The Carters assert that Dunn’s contract

sweeper generated dust inside the plant as this vehicle attempted

to capture it because the sweeper used no water on its brushes.

The Carters finally feel that the odor is beyond control because

Dunn stockpiles asphalt 12 feet high along a four—foot retaining

wall. This is assumedly in the open.

Dunn filed a supplemental response on November 20, 1987. In

it, Dunn reiterates that deliveries of aggregate materials enter

only from the west gate, away from the Carter home. Dunn

maintains that it is permitted to operate 24 hours, but also

maintains the accuracy of the hours originally asserted in its

October 27, 1987 report. Dunn asserts that its windbreak fence

along the Carter property line was suggested by the Agency and is

effective in controlling fugitive dust. Dunn maintains that

paving the stockpile area and keeping the paved surfaces clean is

adequate to control dust from that area, and observes that no

person from three blocks away has ever complained of dust. Dunn

admits that it stockpiles cold patch asphalt, but points out that

this is along its far southern fence line and that it emanates no

odor.

In its supplemental response, Dunn estimates the capital

costs of the proposed control measures outlined in its earlier

response. The total is about $56,500. About $11,800 of this is

for the aspirated fume hood, which Dunn states would not produce

benefits proportionate to its cost. Dunn believes that

installation of this device will render routine maintenance

difficult and create a safety hazard by obscuring the view of the

silos. It states that loading a single truck takes only 15

seconds, so only a small portion of any day permits odor

emissions from the loading of 40 to 80 trucks. It also states

that the hood would only aspirate asphalt fumes during operation

of the plant dryer, which is only about half the time. Dunn

requests that this Board not require installation of the hood

under the product silos.

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In a supplemental reply, dated November 23, 1987, the

Carters reiterate their assertions that trucks hauling aggregate

and liquid asphalt cement do in fact enter through the north

gate. They make numerous other reiterations and several

assertions not relevant and material to the issues before this

Board: What reasonable and cost—effective means exist to control

dust and odor emissions from the Dunn property so that Dunn, the

Carters, and other surrounding neighbors can continue in the

reasonable enjoyment of life and property?

Discuss ion

It is worth initial observation to note that this Board

lacks the full equity powers and legal authority of a court of

law. It cannot hear matters of general law or grant relief

beyond what the Environmental Protection Act would authorize.

See Ill.Rev.Stat. ch. 1111/2, Sections 1033 

1042. Like a court

of law, however, it is constrained to decide each individual case

on its merits and based on a record established according to

certain procedural and evidentiary rules. 35 Ill. Adm. Code

103.200 

—

103.210.

With this in mind, the Board takes no notice of any

allegations of violations now made by the parties that remain

unproven in testimony or evidence not properly presented in the

public hearings of October 8, 1986 and March 3, 1987 and properly

made part of the record. This Board also takes no notice of any

testimony or evidence which is not relevant to issues within this

statutorily—defined jurisdiction. Further, this Board cannot now

hear allegations pertaining to matters within its jurisdiction

which are not part of this proceeding. Finally, the sole object

of the comments solicited in the August 6, 1987 Opinion and Order

was to fashion relief from the fugitive dust violations found

therein, and to alleviate any odor problem. For these reasons,

allegations of noise, submissions of certain unattested

photographs, assertions of certain adverse health effects, and

other related matters made as part of the ordered comments were

not properly made at this time.

The original record contained little to guide this Board in

imposing requirements with which Dunn could comply. The record

after the parties’ more recent submissions contains enough

information to impose certain requirements for compliance on

Dunn, although a fuller record might have allowed greater

precision and certainty. The requirements below represent the

fullest extent to which this Board can grant relief based on the

facts properly before it.

Initially, however, this Board agrees with Dunn, based on

the information submitted, that the cost of the aspirated fume

hood for finished product loading operations would probably

outweigh any potential benefits it would confer. The potential

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safety hazard 

could create is a significant part of its cost

consideration. The fact that it would likely be operational half

the time diminishes its prospective benefits. It is further

possible that alternative measures could control odor emissions

from this source, but the record does not identify them.

The Board has decided to impose the full requirements of its

regulations pertaining to fugitive particulate matter on Dunn’s

operations. The Dunn plant is located upwind of (based on a

prevailing summer southwest wind) and immediately bounded by a

residential area. The requirements of Subpart K: Fugitive

Particulate Matter of Part 212: Visual and Particulate Matter

Emissions of the Air Pollution regulations, 35 Ill. Adm. Code

212.301 

—

212.315, will adequately control the emissions from the

Dunn plant with only minor additional requirements. The more

significant of these regulations, any additional requirements

this Board will impose with regard to each, and any

recommendations or observations this Board makes with regard to

any are listed below:

Section 212.301 Fugitive Particulate Matter

This provision requires the control of fugitive particulate

emissions by not permitting visible emissions from any material

handling, material storage, or process facility. The Board adds

no further requirement to this Section.

Section 212.304 Storage Piles

This provision requires the control of fugitive particulate

emissions from storage piles, such as Dunn’s aggregate storage

areas. This provision shall apply to Dunn’s aggregate storage

areas, the 50 T/year and 100 T/year limitation provisions

notwithstanding. The Board will require Dunn to complete the

proposed paving of this area before September 1, 1988. Until

such a time as Dunn shall assemble and the Agency shall have an

opportunity to comment on an operating program for the Dunn

facility, Dunn shall commence sweeping, vacuuming, or using some

alternative temporary method for effective dust removal from all

dust—generating stockpile and traffic areas in its plant before

June 1, 1988. Dunn shall continue this method or its equivalent

on a regular basis until it either suspends its operations or

implements its operating program. The Agency can work with Dunn

to devise an adequate program for dust control and removal as

part of Dunn’s revised operating program pursuant to Sections

212.309 through 212.315. The Board observes that Dunn’s past

monthly oiling and sweeping efforts have proven inadequate, and

recommends that the Agency and Dunn devise such means at such a

frequency that will provide effective dust control. The Board

also observes that the installation of a windbreak fence on the

downwind side of the storage piles relative to the Carters’ and

other residential properties has proven ineffective, and

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recommends that the Agency and Dunn study the more appropriate

positioning of such a fence with respect to prevailing winds, the

shape and situation of the wind—protected storage area, and the

location of the neighboring residences. An upwind location from

the storage piles may be more appropriate. The Board also

suggests that the Agency and Dunn include in Dunn’s revised

operating program such provisions as are appropriate to control

the enhanced dust emissions generated during routine materials

handling operations, such as truck offloading, pushing materials

into piles, picking up materials for transport to the process,

etc.

Section 212.305 Conveyor Loading Operations

The record does not indicate whether Dunn employs conveyor

loading to its aggregate stockpiles. If at any time Dunn uses

such equipment, the provision of Section 212.305 shall apply to

its operations, the 50 T/year and 100 T/year limitations to

Section 212.304 notwithstanding.

Section 212.306 Traffic Areas

This provision requires the control of dust emissions from

normal traffic pattern areas that are generated by mobile

equipment and vehicles moving within a plant. Section 212.306

shall apply to Dunn’s facilities, the 50 T/year and 100 T/year

limitations of Section 212.304 notwithstanding. Dunn has already

paved these areas, according to the record, and this Board will

require that all such existing and future areas remain paved.

This Board will require that the area in the vicinity of the

material hoppers where aggregate materials loading occurs be

considered normal traffic pattern areas and remain paved. The

Board’s observations and recommendations with regard to the

aggregate material storage areas shall apply to the normal

traffic pattern areas. The Board further observes that limiting

the speed of mobile equipment is a potential supplemental method

for reducing dust generation.

Section 212.307 Materials Collected by Pollution Control

Equipment

This Section requires the control of fugitive particulates

emissions generated by the handling of materials collected by

pollution control equipment. The provisions of Section 212.304

shall apply to any dust collected during Dunn’s efforts to

control its fugitive emissions, by whatever means collected.

Section 212.308 Spraying or Choke—Feeding Required

This provision requires the control of fugitive particulate

emissions generated by various materials handling and processing

operations. Section 212.308, in addition to its current

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applicability to Dunn’s operations, shall apply to all aggregate

materials offloading from trucks, the deposition of aggregate

materials into the materials hoppers, and the aggregate conveyor

transfer point.

Sections 212.309 Through 212.312 Operating Program and Amendments

Dunn shall prepare an operating program in compliance with

Sections 212.309, 212.310, and 212.312 and submit a copy of its

program to the Agency as part of an application for an amended

permit to include Sections 212.301 through 212.315 not later than

August 1, 1988. Dunn shall implement all provisions of its

operating program not requiring the installation of capital

equipment prior to October 1, 1988. Dunn shall implement all

provisions of its operating program as expeditiously as possible,

but not later than March 1, 1989, unless an earlier date is given

in this Order. The Agency may require an earlier date as a

permit condition if it has determined that it is as expeditious

as practicable.

In addition to its actions to minimize or eliminate its

fugitive particulate emissions, Dunn has agreed to take certain

actions to control its odor emissions. As mentioned, such

requirements shall not include the installation of an aspirated

hood around its finished product loading equipment. Dunn must,

prior to August 1, 1988, install activated carbon filters at the

vents from its heated asphalt cement tanks. Dunn must select the

activated carbon adsorbant, the size of these filters, and

perform necessary replacement and/or maintenance of these filters

according to the recommendations of the manufacturer or licensed

professional engineer, for the specific purpose of controlling

Dunn’s odors from its asphaltic cements.

This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Based on the Board’s findings and conclusions expressed in

this Opinion, the Board hereby orders Dunn Company to undertake

the following actions:

1.  To file with the Illinois Environmental Protection

Agency (“Agency”), by August 1, 1988, an

application for an amended operating permit which

shall include provisions for compliance with 35

Ill. Adm. Code 212.301 through 212.315, inclusive;

any provision purporting to except its operations

because of the magnitude of their emissions

notwithstanding;

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2.  To implement, by October 1, 1988, all provisions of

its operating program filed with the Agency which

do not require the installation of capital

equipment;

3.  To comply by March 1, 1989, or by any earlier date

set by the Agency as part of its permitting

authority, or by any earlier date required by this

Order for any particular action, with the

provisions of 35 Ill. Adm. Code 212.301 through

212.315, inclusive, any provision purporting to

except its operations because of the magnitude of

their emissions notwithstanding;

4.  To pave by September 1, 1988 the entire surface of

its aggregate materials storage area, including

that area in the vicinity of its aggregate

materials hoppers;

5.  To initiate by June 1, 1988 an interim program for

the on—going collection and removal of dust from

all dust—generating stockpile and traffic areas in

its plant, and continue in these collections and

removals until such a time that it initiates

permanent practices pursuant to compliance with an

operating program and permit including provisions

for compliance with 35 Ill. Adm. Code 212.301

through 212.315, inclusive;

6.  To install by August 1, 1988 an activated carbon

filter on the vents of its heated asphalt cement

tanks, which filter is designed and selected

according to a manufacturer or licensed

professional engineer’s recommendations for the

purpose of controlling its odors from its asphaltic

cements, and to replace and/or maintain this

equipment 

an on—going basis according to those

recommendations.

The Clerk of the Board shall forward a copy of this Opinion

and Order to the Agency.

IT IS SO ORDERED

Board Member 3. Theodore Meyer dissented.

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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the abo~eOpinion and Order was

adopted on the ~‘/‘~day of 

_____________________,

1988, by a

vote of 

~,—/

Dorothy M. G nn, Clerk

Illinois Pollution Control Board

88—284