ILLINOIS POLLUTION CONTROL BOkRD
March
191
1987
WELLS MANUFACTURING COMPANY,
)
Petitioner,
v.
)
PCB 86—49
ILLINOIS ENVIRONMENTAL
PR3TECTIO~1AGENCY,
Respondent.
MR. JOSEPH
S.
WRIStIT, JR.,
OF
MARTIN,
CRAIG, C~P~STER&
SONNENSCHEIN, APPEARED ON BEHALF OF COMPLAINANT.
MR. GLEN
C. SEC9~N,AS3IST~T ST~T~’SATTORNEY,
MR. CAREY
COSENTINO,
ASSISTANT ATTORNEY GENERAL,
MS. SUSAN SCHROEDER,
ILLI”flIS E~IVIRDNMENT\LPRDTECTIO~ AGENCY ATTORNEY,
AND MR. JO5~PH
R. PODLEWSKI,
JR.,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
ATrORNEY,
APPEARED ON BE~-RLFOF RE3PO”TDENT.
OPINION
(by 3.
D.
Dumelle,
R.
C.
F.emal
and B.
Forcade):
This matter comes before the 3oar~ upon
a Permit ~p~oea1
filed by Wells Manufacturing Company
(“Wells”)
on April
1,
1986.
~el1s
conten5s that it was imoroperly denied
r?newal of an
air operating permit by the Illinois Environmental Protection
Agency (“Agency”)
and prays for entry of an order requiring that
the Agency
issue the permit.
On March
5,
1937,
the Boarl
adopted
the following Order:
The February 28, 1986 denial by the Illinois
Environmental Prot2ction Agency of the December
5,
1985,
Wells Manufacturing Company Request
for
Permit Renewal
is affirmed.
Today we submit our Opinion
in support of that Order.
RECORD
Hearings were held
in this matter
at the Morton Grove
Village Hall, Morton Grove,
Illinois,
on July
31, 1936,
and
September
11,
1986.
The Hearing Officer estimates that
approximately 150—230 persons were
in attendance
at the
first
76.302
—2—
hearing and approximately 35—50 persons were in attendance
at the
second hearing.
In addition
to testimony from ao~roximate1y15
citizen witnesses,
testimony was received from four Agency
employees called
as witnesses by Wells and four citizen witnesses
called by the Agency.
Petitioner’s Brief
(hereinafter
“Wells’
Brief”)
was filed
on
November 12,
1986.
Respondent’s Brief (hereinafter “Agency
Brief”) was filed
on December
17,
1936.
Both briefs were timely
filed according to the schedule set out by the Hearing Officer.
The Hearing Officer
also allowed Petitioner
until January 12,
1987,
to file
a Reply Brief.
The Reply Brief was filed on
January 16,
1987.
In addition
to the original Permit kpoeal document, heating
transcripts, and briefs,
the record
in this matter includes six
exhibits aooended to th~Permit kpoeal
(hereinafter “Ap~ea1
Ex.”),
and
349 exhibitst constituting the Agency Record~
(hereinafter
“Joint Ex.”).
The majority of the Joint Exhibits,
approximately 250
in number,
consist of complaint forms
filed
with
the Agency concerning
the facility
in question.
Approximately another dozen of these exhibits consist of letters
and petitions
filed with the Agency by citizens.
All
such
materials were on file with the Agency,
and hence available to
the Agency, orior
to
the Agency’s action
in
the instant matter.
Several exhibits were also entered at hearing and were identified
as Petitioner’s and Resoondent’s exhibits.
We note that on September 20,
19.86, S.T.O.P.
(“Suburbs Turn
Off Pollution”)
sibititted to the Board
a letter
and aporoximately
81 pages of copies of newspaper articles.
Neither of
these
items,
in the form sub-nitted
to the Boar3, constitute materials
before
the Agency
at the
time of
the Agency denial action, other
than as some portion of
these materials might
be duplicated
within the Agency’s record.
Since Board review on permit appeals
is confined
to the record before
the Agency,
and since
there
is
no provision for admission of third party evidence
in permit
ao’oeals before
the Board, these have not been considered
by us.
The numbers of
the exhibits
in the Joint Exhibits actually
extend
to and
include number
353.
No exhibits were submitted
under
the numbers 29~,297,
331,
and 337.
2These exhibits were moved
for admission jointly by Wells
and the
Agency
(R.
at 185).
76-303
—3—
BACKGROUND
Wells conducts an iron castings operation at its facility
located
at 7800 North Austin Avenue,
Skokie,
Illinois.
The
facility
is located
in an area of Skokie zoned
for heavy
industrial use.
However, the facility is also located near both
schools and residential areas,
including parts of adjacent Morton
Grove.
Wells has been
in continuous ooeratiort
at its Skokie
facility since 1947.
The facility
therefore predates much of the
adjacent residential
area,
as well
as construction of
at least
the immediately adjacent school, Niles West High School.
One
of the operations conducted
at Petitioner’s facility
is
a shell molding operation, which includes emission
sources from
shell molding,
shell oouring,
and baghouse equipment (hereinafter
collectively “shell molding operation”).
Shell molding
is
a
process
in which
fine sand mixed
with
a resin
is packed around
a
pattern that
is to be duplicated
in cast metal.
Upon heating,
the resin melts
and bonds
the grains of sand together.
The sand
thus retains the desired shape and can be used
as
a mold for
creation of castings (Joint Ex.
334,
p.
2).
Wells admits that
the shell molding process produces
a “distinctive
odor...characteristic of
the resin”
used
in the process
(Id.,
pgs.
2—3).
The resin used
is phenol formaldehyde
(Id., p.
3).
Wells was granted
a construction permit for
the shell
molding operation by the Agency on January 11, 1980.
On May
4,
1931,
the Agency also granted
an
initial operating permit.
On December
6, 1985,
Wells submitted
a first renewal
application
for the operating permit for the shell molding
operation.
Procedurally,
the Agency provides that permit renewal
a~plicatiorismay be
initiated by the aoolicant returning
to
t1ne
Agency
a signed copy of
a two-page form provided by the Agency.
As
the
form in question notes, this mechanism for aoolication
renewal
is available
to the addressed permittee “(if
your
operation is unchanged”
and
it
is certified “that
the original
application
information remains true, correct, and current”
(kpoeal
Ex.
5;
Joint Ex.
3).
Wells’
renewal aoolication was
of
this
form,
and carried
the required certification over the
signature of Marshall
K.
Wells, Wells’ President
(Id.).
AGENCY DENIAL
By letter from the Agency dated February 28, 1986
(Appeal
Ex.
6;
Joint
Ex.
1)
Wells was notified that the renewal permit
was denied.
As reasons for denial,
the Agency stated:
76.304
—4—
The permit
is DENIED because Section
9 of the
Illinois Environmental Protection Act, and 3~Ill.
Adm. Code 201.141
(formerly Rule 102) might be
violated.
The following are soecific
reasons why the Act and
the Rules
and Regulations may not be met:
The Agency has on file verified citizen odor
complaints
to the effect that the equipment
described
in the above—referenced
aoolication,
either alone or
in combination with other sources
is causing, threatening,
or allowing
the
discharge or emission of air contaminants, which
are causing air pollution,
in violation of
35
Ill. Adm.
Code 201.141
(formerly Rule 102).
These complaints allege emissions of odors into
the environment from the facility are causing
a
public nuisance in the neighborhood.
Until
necessary measures are taken
to correct these
deficiencies,
a permit cannot be issued
for the
above—referenced application.
(Id.,
p.
1)
The Agency’s denial
letter
further states that the
“Agency
would
be pleased
to re—evaluate
the
permit application”
on
receipt of written request and the s~biiissionof certain
information and documentation
(Id.,
o.
2).
The record
indicates that at the time
it was considering
Wells’
application, the Agency had before
it more than 250
written citizen complaints,
plus additional letters
arid petitions
concerning the emission of odors from the Wells facility.
(Joint
Exhibits
6 to
224,
227
to
231,
234
to
236,
233
to
245,
247,
248,
250
to 263,
275
to
285,
343
to
350,
352,
and 353).
Approximately
90
of these como1ain~swere authored and filed with the Agency
in calendar year 1985
Relying
on the volume and
substance of the citizen
complaints,
the Agency determined that Wells’ permit
for
the
shell molding operation could not be renewed,
as the emissions
from that process might be violating Section
9 of the Act and
Section 231.141
of
the
air pollution regulations.
Sections 9(a)
(of the Act)
and 201.141
(of the
air pollution
regulations)
contain similar language, and read
in
full
as
follows:
3It
is possible
that more of
the comolaints
on record were
submitted
to
the Agency during 1985, but this cannot be
determined
as
the remaining
comolai’-its are undated.
76-305
—5—
Section
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;
Section
201.141
Prohibition
of
Pdr
Pollution
No person shall
cause
or threaten or
allow 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 Chaoter,
or
so
as
to prevent the attainment or maintenance
of any
aoolicable ambient
air quality standard.
The term “air pollution”,
as used
in these sections,
is
defined
in Section 3(b)
of the Act
as
b.
“AIR POLLUTION”
is the presence
in the atmosphere
of one or more contaminants
in
sufficient
quantities
and of such characteristics and
duratiton 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.
LEGAL PR~EDENT
The statutory definition of
“air pollution”
has been
interoreted on several occasions by the Illinois Supreme Court.
See Wells Manufacturing v. Pollution Control Board,
73
Ill.
2d
226
(1978); Processing
& Books,
Inc.
v. Pollution Control Board,
6.1
Ill.
2d 68
(1976);
Mystik Ta~ev. Pollution Control Board,
60
Ill.
2d 330
(1975);
Incinerator, Inc.
v. Pollution Control Board,
59
Ill.
2d
290
(1974).
Wells involved consolidated enforcement
actions brought by the Agency and Citizens for
a Better
Environment against the same Wells facility that
is at issue
in
the present proceeding.
The Wells court said that
in defining
the level
at which interference with
the enjoyment of life or
property becomes “unreasonable”
The Board must balance the costs
and benefits of
abatement in an effort
to distinguish
‘the trifling
76-306
—6—
inconvenience, petty annoyance
or minor discomfort’
from
‘a substantial
interference with the enjoyment
of life and property’.
The court went on to say that the unreasonableness
of
alleged air pollution must be determined by the Board
in
reference to the statutory criteria found
in Section 33(c)
of the
Act.
73
Ill.
2d at 232—233.
The criteria are:
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;
and
4.
the technical practicability and economic
reasonableness of reducing
or eliminating
the
emissions, discharges or deposits resulting from
such pollution source.
ST~NDkRDOF REVIEW
I’1 PERMIT APPEAL PROCEEDI~GS
The Board’s historic aooroach
in permit denial oroceedirigs
was best
stated
in Oscar
Mayer
& Co.
v.
IEPA,
PCB 78—14,
30 PCB
397,
398
(1978)
“Under
the statute, all
the Board has authority
to do
in
a hearing and determination on
a Section 40
petition
is
to decide after
a hearing
in accordance
with Sections
32 and 33(a) whether or not,
based upon
the
facts of the apolication, the applicant has
provided proof that the activity
in question will not
cause
a violation of the Act or of
the regulations.
In a hearing on
a Section 40 petition, the applicant
must verify the facts of his
aoolication as submitted
to the Agency,
and, having done
so,
must persuade the
Board
that the activity will comply with the Act and
regulations.
At hearing,
the Agency may attempt
to
controvert the ao~licant’sfacts by cross—examination
or direct testimony;
may submit argument on the
a’oolicable law and
regulations
and may urge
conclusions therefrom;
or,
it may choose
to do
76-307
—7—
either;
or,
it may choose
to present nothing.
The
written Agency statement
to the applicant of
the
specific, detailed reasons that the permit
application was denied
is not evidence
of th~truth
of the material therein nor do any Agency
interpretations
of the Act and
regulations therein
enjoy any presumption before
the Board.”
Reviewing courts have affirmed the validity of this
approach.
For example,
in Illinois Environmental Protection
Agency v.
Pollution Control Board, 118 Ill.
App.
3d 772
(1933),
the First District Appellate Court reviewed the Board’s reversal
of the Agency’s
imposition of certain conditions within some
short term air construction and operating permits for
a
facility.
The court
stated that:
The sole question before the Board
in
a review of the
Agency’s denial
of
a oermit
is whether
the oetitioner
can prove that its permit application
as submitted
to
the Agency establishes that the facility will not
cause a violation of the Act. 118 Ill.
App.
3d
at
780.
See also I~P v.
IPCS,
138
Ill.
Apo.
3d 550
(3rd Diet.
1985), aff’d
_____
Ill.
2d
_____
(1986)
(Board need not apply
manifest weight of the evidence standard
in reviewing Agency
permitting decisions).
Thus,
the decision before the Board
in the case
at bar
is to
determine whether Wells has shown that the operating permit
renewal application
it submitted
to the Agency establishes that
no violations of Section
9 of the Act or
of
35
Ill.
Adm.
Code
231.141 would
result from the continued operation of the shell
molding operation at the Wells facility.
TT~E
SUPREME COJRT
WEL.3
DECISID~AND
SE0rION
33(c)
FACTOlS
We
note that
Wells involved
a combined permit aooeal
and
enforcement
action, whereas the
instant matter
involves a permit
appeal
alone.
Because of this distinction,
it
is unclear which
of the Wells determinations are properly applicable
in the
instant matter.
This uncertainty pertains particularly to the
function served by the Section 33(c)
factors.
Section 33(c)
is
located within Title VIII of the Act, which involves enforcement
actions,
and Section 33(c)
is thereby plainly intended
to apply
in enforcement proceedings.
It
is less obviously certain that
it
may also apply,
or be
useful,
in some permit appeals.
The particular
issue faced
by the court
in Wells was that of
drawing
a distinction between “a
trifling
inconvenience, petty
annoyance or minor discomfort”
arid
“a substantial
interference
76-308
—3—
with enjoyment of life and property”.
This distinction had
necessarily to be drawn to allow the court
to determine whether
a
violation had occurred,
and thereby whether the enforcement
action
as brought was
to be upheld
or reversed.
In drawing
the
distinction,
the court applied the test conditions of Section
33(c), which were also before
it
as part of the combined
proceeding.
In
so doing,
the court weighed the 33(c)(1) degree
of
injury
arid interference against the 33(c)(2)
value of the
pollution source,
33(c)(3) suitability of the site source, and
33(c)(4) practicability and reasonableness of control factors.
Many of the same elements before the court in Wells are
before the Board
in the
instant matter,
although there
is
a key
difference.
Again,
the allegations are to the “nuisance”
provisons of
the Act and the Board’s regulations.
And,
therefore, again the distinction between “a trifling
inconvenience, petty annoyance or minor discomfort”
and “a
substantial interference with enjoyment of life and property”
must be drawn.
Also, again,
the aopropriate
test criteria upon
which this distinction
is to be made must be determined.
The
key
difference is that the case at bar
is solely a permit appeal,
and
that therefore the Board
is required
to determine whether the
aoolicant has proven that
a violation would not occur
if the
permit were to issue.
We find
it appropriate,
as did the court,
to aoply the Section 33(c)
tests
in making this determination.
In so doing, we would not establish, even
if
it believed we
could,
the general applicability of Section 33(c)
in oermit
appeal cases.
Rather, we believe that
in those special cases
where the alleged likely violations are
to the so—called
“nuisance”
provisions of the Act
or Board regulations,
the
Section 33(c) factors provide
a useful,
if not necessarily
unique,
set of criteria against which the allegations may be
tested.
BOARD REVIEW
Citizen Testimony
Eighteen residents of the area surrounding
the Wells
facility presented testimony at hearing concerning the
detrimental impact
the facility’s emissions have on their
lives.
The following summaries are representative of the
testimony given
by the citizen witnesses.
Ken Lisjeberg testified that the smell
from those emissions
has caused him to experience headaches, upset stomach, dizziness,
and nausea
(R.
at 15), and has caused him
to vomit mucus several
times
(R.
at
16).
He
also stated that the odor has steadily
increased
in severity in recent years,
although apparently
decreasing
somewhat in
1936,
possibly due
to
the direction of
prevailing winds
(R.
at
20—21).
76-309
—9—
Jack Galick, who
is
a chemist by profession,
testified that
the
odor released by Wells’
emissions is phenol
formaldehyde
(R.
at
25).
He indicated that he has suffered burning of the eyes
and
respiratory effects from the smell,
even though he does not
suffer from those problems generally
(R.
at 25—26).
Thomas Sokalski testified that his wife and
two children
have experienced coughing,
nausea, sore throats,
and irritated
eyes from the Wells odors
(R.
at
53).
Lorraine Biegart, Angie
Adler,
Mark Siegal,
and James Davis all testified that,
inter
alia, the odors have definitely gotten worse over the past
several years
(R.
at
56,
60,
77,
85,
89).
Nancie Cohen testified on behalf of the Agency that although
she has lived since 1972
in
a home
three blocks north and
a half
block east
of the Wells facility,
she has only noticed
the odors
from Wells
since 1981
(R.
at 349—350).
She further
indicated
that the odors have continually gotten worse since
1934
(R.
at
353—354).
Carol Salinger
also testified
as an
Agency witness.
Mrs.
Salinger
is
a teacher at Lincoln Junior High School
in Skokie,
and lives aooroximately five
to six blocks west of the Wells
facility
(R.
at 369—370).
She has
a degree
in biochemistry and
has worked
as an organic chemist
in an organic
synthesis lab
(R.
at 371).
She labels the odors as phenolic
in nature,
and says
she can
so identify
it because
of her
training
and familiarity
with these
types of products (Id.).
Mrs. Salinger describes the
Wells odors
as “intolerable”
arid says they have caused her
to
experience headaches and nausea
(R.
at 370), the latter
to the
point where
at times
she cannot stay outside without fear
of
vomiting
(R.
at 383—384).
All
of the witnesses whose testimony was summarized
above
submitted complaint forms
to the Agency several months before
WelLs’
permit ap’Dlication was denied.
These
forms
and the
allegations contained within them were therefore before the
Agency at the time it denied Wells’ permit aoolication,
and were
ostensibly relied upon by the Agency in making its
determination.
We believe that the Hearing Officer correctly
allowed the testimony of those Agency witnesses who were called
to
amplify upon joint exhibits contained
in the Agency record.
The Hearing Officer was similarly correct in ruling that the
testimony of Agency witness Judy Sloan was inadmissible because
it was not offered
for the purpose of amplifying any portion of
the Agency record.
Robert Hanrahan also offered testimony at hearing
in this
matter.
Mr. Hanrahan did not submit
a complaint
form to the
Agency prior
to
the latter’s decision regarding Wells,
so his
comments were not relied upon by the Agency.
Pursuant
to
35 Ill.
Adm. Code l05.l02(a)(6) and 103.203 Mr. Hanrahan was entitled
to
76-310
—10—
present testimony, however,
and made the following comments.
Mr.
Hanrahan, who teaches
at Niles West High School
and lives
three
blocks from the Wells facility.
He testified
to the existence of
a very sharp odor which has seemingly gotten worse
over the past
two
to three years
(R.
at
36,
43).
He described the odor as
“very irritating”, and one that “almost leaves
a metallic taste
in your mouth”
(R.
at 38).
He also related
a recent incident
involving a neighbor of his who had tentatively sold his house,
only
to have the deal fall through when the potential purchaser
noticed
the
odor from Wells
(R.
at
39).
Hanrahan noted that the
odor creates
an economic problem for persons living near
the
Wells facility,
as the homes
in that area are valued
in the
$200,000
to $250,000 range
(R.
at 39—40).
Wells’
Case
in Chief
Wells contends that the Agency had no legal
right
to deny
its permit application
(R.
at
93),
and offers many arguments
challenging
the Agency’s action.
The discussion contained
in
this section will address only those arguments which relate
to
the crucial issue
in
a permit aooeal before
the Board: whether
Wells has proven that
a violation will not occur
if
the permit
is
issued.
First, Wells contends that the citizen complaints relating
to the Wells
odor were not verified by the Agency prior
to the
decision made by the Agency to deny the permit
(Wells’
Brief,
p.
11).
Harish Desai,
Agency Unit Manager
for the Chicago area,
testified that the Agency considers
a citizen complaint
“verified”
if
it has been verified by personnel
from the Agency’s
field
operations section
(R.
at
150).
Jean Damlos
is
the Agency
field inspector assigned
to the Wells
facility.
Ms.
Damlos gave
testimony,
in response
to questioning
by. counsel
for Wells,
concerning the findings of
the various
inspections she made of
the Wells facility and the area surrounding
it.
Ms. Damlos visited the area almost 30 times during 1985, and
observed
odors ranging
in severity from “none”
to
“strong”
(Wells’
Brief,
p.
21—22).
When the results of these observations
are summarized
in
an organized
fashion,
it
is clear that Ms.
Damlos most frequently observed
no odor or odors of mild or
moderate severity,
as opoosed
to strong odors
(Id..).
Wells
argues that Ms. Damlos
is “the only trained observer and the only
impartial observer
to report”
(Wells Brief,
p.
22),
and therefore
that her findings, which
in its view do not indicate that Wells
is causing “unreasonable interference with the enjoyment of life
or property”,
should be given more weight than those of citizens
(Wells’ Brief,
p.
23).
76-311
—11—
Similarly, Wells disputes the accuracy of the citizens’
complaints by relying on Ms. Damlos’
testimony pertaining
to the
results of tests she conducted
in the area with a piece of
equipment called
a Drager
tube.
Although Ms. Damlos conducted
tests with the Drager tube on several occasions,
the equipment
never detected the presence of phenol
or formaldehyde
(R.
at
259—
260).
Second and more generally, Wells makes
the argument that
since the Agency issued
an operating permit for the shell molding
operation on May
4,
1981
(R.
at 92), and because Wells has
certified that all the information
in that prior permit
application “remains
true,
correct, and current...”
(Joint
Ex.
3),
the contested permit
in this case must issue.
Wells bases
this conclusion on
the
fact that the Agency,
in making its
determination regarding
a permit application,
issues
the permit
only after
concluding
that in doing
so
no violations
of the Act
or regulations will occur.
Since
the Agency so concluded
in
1931, Wells opines,
the Agency must
so conclude again.
CONCLUSION
We believe
it instructive at this juncture
to again
state
the
scope of review
it
is mandated
to undertake
in
a permit
appeal proceeding.
The scope of
review
in these cases is
extremely narrow,
and focuses solely on the question of whether
the petitioner has proven
to the satisfaction of the Board that
its aoplication,
in the form submitted
to the Agency, establishes
that the facility will not cause
a violation of the Act (see p.
5,
suora).
For the reasons described
below, we find that Wells
has not made such a showing.
We therefore affirm the Agency’s
February
28,
1936, denial
of Wells’
permit ap~olication. We
conclude,
after evaluating
the unreasonableness of
the air
pollution
alleged here with reference to the Section
33(c)
criteria, that violations of
Section 9(a) of the Act and Section
201.141
of
the air pollution regulations might
occur
if the
permit
in question were
to issue.
We give substantial weight to
the citizen complaints due
to
the severe impacts alleged by the citizens and attributed by them
to the odor from Wells.
In the prior Wells
case,
the Board
concluded:
Taken as
a whole, the citizen testimony
indicates
that there
is,
at times,
an odor characterized as
‘phenolic’
emanating from the Wells facility.
The
testimony further
indicates that the odor has
an
effect ranging from unpleasantness
in most people to
physically affecting the respiratory systems of
people who are afflicted with respiratory problems or
who are engaging in heavy exercise (emphasis added;
76-312
—12—
Environmental Protection Agency v. Wells
Manufacturing Company,
PCB 73—403
(consolidated),
20
PCB 135, 140, February
20, 1976).
The First District Appellate Court characterized the effect of
the odor on citizen complainants as “mild discomfort”.
Wells
Manufacturing Company
v. Pollution Control Board,
4B
Ill.
App.
3d
337, 339
(1977).
However,
the record
in the case at bar
indicates much more
persuasively that Wells’
emissions may cause unreasonable
interference with the enjoyment of life or property and hence,
air pollution.
Many of the citizen complainants who testified at
hearing
in the present matter
alleged physical effects from the
Wells
odors that are significantly more severe than simple
“unpleasantness”
or
“mild discomfort”.
The
record
is replete
with evidence
from and/or concerning apparently otherwise healthy
oeoole who experience adverse resoiratory effects simply as
a
consequence
of exposure
to the odors
(R.
at
25 and
53;
see also
Joint Ex.
64,
80,
88,
91,
92,
142, 168, 172,
173,
208,
210,
and
211).
There are
also many references made
in the record to other
physical effects,
such as burning of the eyes,
nausea and
vomiting, dizziness, sore throats, and headaches (R.
at 15—16,
25—26,
53,
and 370;
also see Joint
Ex.
56,
59,
64,
77,
80,
88,
91,
92, 118, 142, 145,
170,
176,
181, 184,
190,
194,
195,
209.,
210,
212,
218, and
219).
The citizen allegations,
if accepted
as
true,
indicate the existence
of unreasonable interference with
the enjoyment of life or property.
Interference
of the sort
alleged
in this case goes
far beyond “trifling inconvenience,
petty annoyance,
or minor discomforts”.
We view the interference
alleged by the citizen complainants as more approximately
reaching the level
of pervasive intrusion,
affecting nearly every
aspect of
the lives of
those living or working
in close proximity
to the Wells facility.
Moreover,
there
is evidence
in the record
to indicate that
the odors emanating from Wells have increased in severity.
As
already discussed, many of the witnesses testified that the odors
have increasingly worsened over
the past several years
(see p.
11;
see also R.
at
55,
63,
77, and
89,
and Joint Ex.
117).
Citizen allegations such as these are inherently contradictory to
Wells’
assertion that the information contained
in its original
application remains accurate
(R.
at 160).
The major thrust of Wells’
efforts
to diminish the weight of
the citizen testimony focused on the examination of Jean Damlos,
the Agency’s field inspector assigned
to the Wells facility (see
o.
12—13).
However, we believe that the testimony elicited from
Ms. Damlos
is not sufficient
to meet Wells’
objective.
Simply
because Ms. Damlos characterized the odors using
terms of
lesser
severity than did some of the citizen complainants,
it cannot
be
said that
the citizens did not
in fact smell what they allege
to
76-313
—13—
have smelled.
The citizens
recorded their observations at
different times
and
at different locations than did Ms. Damlos,
and reported a much greater number of observations than did the
field
insoector.
Moreover,
as noted
by the
gency,
Ms.
Damlos’
characterization of the odors
is generally no worse than
“moderate”
does not necessarily mean that those
same odors did
not constitute
a “nuisance” (Agency Brief,
p.
16).
An attempt to
determine
the existence of
a nuisance requires
a legal
conclusion,
one that Ms. Damlos
is not qualified
to make.
Wells also elicited testimony from Ms. Damlos regarding
tests she performed using Drager tubes,
but this evidence was
similarly unpersuasive.
The ability of this equipment to detect
the presence of phenols or formaldehyde
in the area around Wells
is not
a
sine qua non
for the existence of the nuisance there.
The Agency showed that Drager
tubes have
a threshold detection
limit
103
times greater than the odor threshold
(R.
at 247—2~9),
and that
it
is “very common”
to be able to smell an odor yet not
detect it with
a Drager tube
(R.
at
219).
In light of the evidence
in this record, we believe that the
interference with the enjoyment of life or property presently
occurring because of the emissions is more unreasonable than was
that interference evaluated by the First District and Suoreme
courts
in the earlier proceeding
involving Wells.
Restating
this
interpretation
in terms of Section 33(c)(i),
our perspective
is
that the
“character
and degree of injury
to,
or
interference with
the protection of the health,
general welfare and
physical
Property of the people”
is more severe
in the case at bar than
that which was
found
to exist
at the time of the previous case.
It follows, therefore,
that greater weight must be allocated
to
criterion Section 33(c)(i)
in this proceeding
than was possible
on the basis of
the evidence
in the earlier case.
No assertions regarding criterion Section 33(c)(ii)
or
(iii)
have been made
in this which differ
from those made
in the
previous proceeding.
We
therefore rely on the 1973 findings of
the Supreme court on these factors,
i.e.
that the Wells facility
is
a socially and economically valuable employer and source of
necessary industrial parts,
and that the Wells facility is
located
in
an area zoned
for heavy—industrial use and has
priority of location vis—a—vis the schools and homes which now
exist
in the area.
Regarding Section 33(c)(iv),
there
is evidence
in
the record
that technically practicable methods of emission reduction are
presently available.
In 1985,
a study was conducted
of the Wells
facility by the Cook County Department of Environmental Control
(Joint Ex.
317).
The stated purpose of the study was “to
identify the potential source of odors,
to enumerate the
emissions
as described
in current literature
and
to discuss
potential control approaches”.
The
study offered
five possible
76-314
—14—
control approaches,
any of which might be utilized
to reduce the
odors emanating from the Wells facility.
The approaches are:
1.
A catalytic or direct flame afterburner with heat
recovery
2.
Chemical
absorption
scrubbers
3.
Lower
the tunnel oven operating temperature
4.
Increase the cooling time of castings
to reduce
organic emissions
in shakeout
5.
Replace the phenolic resin molds with
a new
casting method such as one using physically
bonded or third generation molds
Wells offered
no testimony
in response
to these potential
technological solutions contained
in the Agency record.
These
alternatives were offered by
a County agency, and therefore were
not suggested for any pecuniary reasons,
as was found
to have
been the case by the Fir~tDistrict and Supreme courts
in the
earlier Wells proceeding
.
We
therefore find
that the present
record differs from the record of the prior Wells proceeding
in
that the
former does establish that some technically practicable
methods of reduci~gor eliminating
the odors from the Wells
facility do exist
There, testimony pertaining
to the availability of
technological control methods was offered by three
sales
representatives
of competing firms selling such equioment (73
Ill.
2d at
237—238).
We realize that Section 33(c)(iv)
also requires economic
reasonableness,
as well as technical practicability,
to be
considered.
The Agency record does contain the capital
and
operating costs
for some of the control approaches proposed
in
the County report
(Joint Ex.
318).
The five and six—figure
costs
given
for the various pieces of equipment, as shown
in Joint Ex.
318,
do not seem inherently unreasonable
for
a company the size
of Wells.
However,
at this time the Board refrains from making
a
determination
as to whether
it would
be
economically reasonable
for Wells
to reduce or
eliminate its oders through the use of any
of the suggested equioment.
The Board
notes that Wells
has
previously conceded that
for
it, economic feasibility has not
been
a barrier
to the installation of any emission—reduction
equipment
(73 Ill.
2d
at
237).
76-315
—15—
Wells’
second argument, that the Agency’s prior granting of
an operating permit
is prima facie evidence that Wells complies
with the Act and all regulations,
is also flawed.
The standards
for issuance of renewal oPerating permits are identified
in
201.162 as being
those
set forth
in 201.160.
The 201.160
standards are also those
for issuance of
an
initial permit.
Thus,
it is clear
that issuances of all permits,
whether they be
initial
or renewal, are subject
to the same tests.
Moreover,
it
is clear that these
tests are to be applied each and every time
a
permit
is under
review,
irrespective of whether
there
is
a prior
history of granting of the permit.
To conclude otherwise would
be
to conclude that an initially granted permit
is
a permanent
license.
This would be contrary
to the whole intent of requiring
periodic permit renewals, as well
as contrary
to the stated
intent of
201.157
articulated at the time of its adoption:
In the case of
an operating permit the applicant must
show
...
that he
is presently in compliance...
(In
the Matter
of Emission Standards,
R71—23,
4 PCB
298,303
(1972), emphasis added).
WELLS’
ADDITIONAL ARGUMENTS
The Agency failed
to inform Wells that
its permit application was incomplete
Wells’
argues that “(the
IEPA is required
to notify an
aoplicant within
30 days of receipt
of an application
if the
application is’incomplete.
35.
Ill. Admin.
Code 201.153”
(Wells’
Brief,
p.
4).
Wells further contends that
“Eit
is clear
in this
case that
the IEPA
(1)
deemed the application
incomplete,
(2)
failed
to notify Wells,
and
(3) proceeded to deny the permit
after
an incomplete review”
(Id.).
While
we agree with Wells’
position that notification of
permit
incompleteness is required when such
is
a matter
of
fact,
we can find no merit with Well’s position that this provision
applied
in the instant matter.
Such notification requirements as
may be imoosed by 201.153 are for
situations where
the applicant
has not provided the basic information which
is specified
in
231.152.
There has been
no contention by Wells that the permit
application was
incomplete
in this regard.
Rather, Wells
seemingly adopts
the position that the Agency’s specification
within the denial letter of additional information which would
allow the Agency to reassess
its denial action
is an implicit
acknowledgement that the permit was incomplete.
We note that there
is clear distinction between whether
a
permit application is complete,
and whether
the information
contained
in the aoplication
is sufficient to warrant the outcome
desired by an applicant.
In the instant case,
Petitioner
76-316
—16—
confuses the completeness
of its application with the condition
where
the information as provided
is sufficient to warrant
granting of
the permit.
As we noted
above,
the issue
in an
appeal of
a permit denial
is whether
or not the permit applicant can prove that
it
presented sufficient facts to the Agency
to show that the
facility in question will be operated
so that there will be no
violation of the Act or
rules.
Having made
its determination
that Wells might be in violation of the Act and rules based on
the complete permit application before
it,
the Agency was
perfectly within
its statutory mandate to deny the permit request
without supplying prior notice
to Wells that the permit
application would be denied.
The Agency violated the letter
and
soirit of
35
Ill.
Adm.
Code 231.157
Wells submits that the Agency violated
both the letter and
the spirit of
the 35
Ill.
Adm.
Code 201.157.
The pertinent
portions of Section 201.157
are:
Section 201.157
Contents of Application for Operating
Permit
An aoolication
for
an operating permit shall
contain,
as
a minimum, the data and information specified
in
Section 201.152.
.....
The
?~genc.ymay adopt
procedures which require data and information
in
addition
to and
in amplification
of the matters
specified
in the first sentence of this Section,
which are reasonably designed
to determine compliance
with
this Chapter, and ambient air quality standards,
which set forth
the format by which all data and
information shall
be submitted.
(underscores added).
Petitioner
argues that,
if the Agency
is going
to require
more than the minimum permit application data and information as
specified in
201.157,
it may do
so only after adoption of
specific procedures.
The clear
intent of the provision identified
in the last
sentence of this section
is to allow the Agency the discretion
to
adopt procedures which require,
as
a general practice, the
submission of more data and information
in operating permit
applications than the minimum required
in construction oermit
applications
(we note that 201.152
refers
to construction permit
aoplications).
Whether
or not the Agency has exercised this
discretion would be germane
to the instant matter only
if the
Agency were
in fact requiring Wells to provide information beyond
the ordinary as
a condition of reviewing the permit
76-317
—17—
application.
This
is not the case.
Rather,
the additional
information cited by the Agency is that information which it
deems would be required of Wells to demonstrate that the record
before
the Agency was not of the nature
to cause
the Agency to
conclude that violations of the Act or regulations might occur.
Nowhere does the Act or
regulations prohibit the Agency from
reconsidering an action if the applicant
is able
to provide
information which successfully contests the record existing
before the Agency.
To the contrary, such supplementing of the
record before
the Agency is encouraged
by the Act and
regulations.
Should
an applicant find
that satisfaction is not
gained
by so supplementing the
gency’s record,
or
should
the
applicant choose not to supplement the record before the Agency,
as
is the case here,
the applicant has recourse
to ap~ea1the
Agency decision to the Board.
If an appeal
to the Board
is made,
as
is also the case here, there
is no change
in the burden of
proof, which remains that the applicant must prove that,
if the
permit
is issued,
no violation of the Act or
regulations will
result.
The only distinction
is that the judgement now resides
with the the Board
rather
than with the Agency.
We do not,
therefore,
find merit
in Well’s argument that the
Agency violated the letter
arid
spirit of Section 201.157.
The Agency review process was fatally flawed
Wells contends that the Agency’s.review process was “fatally
flawed”
in that~the procedures used
in reviewing the application
were “arbitrary and capricious” (Wells’
Brief,
p.
9).
Wells
reaches this conclusion
in reliance on certain of the testimony
given
at hearing by Anton Telford, who was the Agency’s primary
permit analyst working
on the Wells apolication
(R.
at 123—124,
127—128).
Mr. Telford stated that in reaching his determination
that Wells’
application should be denied,
he relied upon field
inspector Damlos’
reports an~telephone conversations with
her
(R.
at
302),
and
the “31(d)”
letter which had been sent
to Wells
approximately six months earlier
(R.
at
301).
Mr. Telford also
indicated that he was aware of the volume of citizen complaints
the Agency had received,
but did not “take the time
to peruse
them
in depth”
(R.
at
335).
6 This refers to
a letter the Agency
is
required
to send, under
Section 31(d) of the Act,
to all persons against whom an
enforcement action
is about
to be filed.
Section 31(d) specifies
that such persons must be informed of the charges which
are
to be
alleged,
and must be given
an oooortunity to meet with Agency
officials
in an effort to resolve the conflict(s)
which could
lead
to
the filing
of
a formal comolaint.
76-318
—18—
The issue of the appropriate standard of review
in permit
appeal proceedings before
the Board has been adequately addressed
(see pgs.
6—7,
supra).
The focus of review under that standard
is on the information
submitted by the applicant to the Agency.
The Agency’s decision—making process
is not
a subject of this
analysis.
As
the
Board has previously stated:
The action of the Agency
in the denial
of
a permit
is
not the issue;
the issue
is simply whether
or not
in
the sole judgement of the Board the applicant has
submitted proof that
if the permit
is issued,
no
violation of the Act of regulations will
result.
Environmental Protection Agency
v.
Allaert Rendering,
Inc.,
PC’B 75—80,
35 PCB
281,
293
(1979).
We add that even if
it were
to evaluate the procedures used
by the Agency
in evaluating Wells’
apolication,
it could not find
that Wells has shown
the Agency’s process to have been “fatally
flawed”
or “arbitrary and caoricious”.
The Agency failed
to verify citizen complaints
The points raised by Wells through this argument have been
previously addressed
(see pgs.
9—14,
supra).
Wells has been prejudiced by the Agency’s
failure
to adopt permit review procedures
Wells suggests that it has been prejudiced by the Agency’s
“failure to adopt permit review procedures
in violation of
Section 39(a) of the Act”
(Wells’
Brief,
p.
13).
Wells relies on
the following language found
in Section 39(a):
When the Board has by regulation required
a permit
for
the construction,
installation, or operation of
any type of facility, equipment, vehicle, vessel,
or
aircraft,
the applicant shall
apply to the Agency for
such permit and
it shall be the duty of the Agency
to
issue such
a permit upon proof by the applicant that
the facility, equipment, vehicle,
vessel, or
aircraft
will
not cause
a violation of the Act or of
regulations hereunder.
The Agency shall
adopt such
procedures as are necessary to carry out its duties
under
this Section
(emphasis added).
This line of inquiry again causes us to return
to the
question of the appropriate standard
of review
in permit
appeals.
Since this topic has already been exhaustively
discussed,
we will not restate the
standard here.
We will note,
though,
in order
to specifically respond
to this argument of
76-319
—19—
Wells, that the Board has long held that the Agency’s procedures,
criteria, and activities pertaining
to
its decisions on permit
applications are not material
to
a Petitioner’s burden of proof
in
a permit aooeal.
kllaert Rendering,
Inc.,
35 PCB
231; Oscar
Mayer
& Co.,
30 PCB 397.
The citizen complaints bear scrutiny
For the most part, we have responded to the arguments made
under this heading by Wells
(see pgs.
9—14,
supra).
However, we
cannot leave unanswered
a misconception propounded by Wells,
which exists
in the record.
On page
14
of its Brief, Wells
discusses the citizen complaints which were received by the
Agency and states:
91
(of them)
did not name Wells
as the subject of
the complaint, were undated, dated May 14, 1985
or
dated June
22 through June
24,
1935.
It
is no secret
that
a rally was held
at the high school on June
24,
1935
(Tr. pp.
384—5)
and that the balance of the
forms were collected
at that time.
This statement
is utterly misleading
to the extent
it
creates the impression that Wells was only infrequently named by
citizens as the source of the odor problem they alleged.
Fully
87
(239 out of
274)
of
the complaint
forms filed positively
identified Wells
as the source of the odors.
Furthermore,
18
of
the forms
(49 out of
274) were undated.
Wells correctly points
out that the vast majority of the forms are dated
in May or June
of
1985.
However, Wells does not clearly
identify,
and we do not
understand,
the significance
of this observation.
Wells
insinuates that many of the complaints were collected at
a rally
at Niles West High School,
as
if that somehow lessens the
credibility of the complaints collected there and/or that of
the
citizens who submitted them.
Wells suggests that these
complaints
are suspect,
and says that “(t)here
is nothing
in this
record
to suggest that IEPA investigated
or even inquired
as
to
the circumstances under which these
forms were solicited
or
gathered”
(Wells’ Brief,
o. 14).
If Wells believed that,
for
some reason related to the manner
in which these complaints were
collected,
they should not have been afforded the weight they
would otherwise be allotted, Wells had the burden of
so showing
in this case.
Wells did not do so
in any manner at hearing,
and
made only cursory, unsuccessful attempts
to
do
so
in
its Brief.
76.320
—20—
The Agency and the Illinois Supreme
Court have found Wells
in compliance
with the Act and applicable regulations
We have previously responded
to this assertion as it
pertains
to the Agency
(see
p. 13,
supra).
Regarding the Suoreme
Court’s prior findings, we are obviously aware that
in 1978 that
tribunal determined that Wells was not
in violation of Section
9(a)
of the Act.
That fact, however,
is not necessarily
determinative as
to whether the same facility may or may not be
in compliance more than eight years later.
We have shown how the
factors within
the calculus applied
by the Supreme Court have
changed, and how that reality has now altered the equation such
that we cannot definitively find that Wells would
be
in
compliance with Section 9(a)
if the permit
in question were
to
issue
(see pgs. 10—14,
suora).
A Section 9(a) violation cannot
lie where
a source is
in compliance
with the regulations governing its process
Wells stress~sthat because
it
is
in compliance with
35
Ill.
Adm.
Code
212.321’ and 245.121
,
it cannot be charged with
violating Section 9(a)
of the Act,
a “general catch—all”
provision
(Wells’ Brief,
p~
16).
Wells further contends that
compliance with these sections provides
it with
a prima facie
defense
to
a charge brought under Section 9(a)
(Id.,
~.
17).
These arguments have no basis
in law.
The existence of
a
Section 9(a) violation
is not
in any way deoendent on the
presence of other violations of the Act or regulations.
An
emission
source may very well
be
in compliance with
the various
regulations applicable
to its process,
yet nevertheless be
causing unreasonable interference with the enjoyment of life or
property.
For example,
a smokestack otherwise emitting legal
emissions may cause
a nuisance
if located adjacent
to a high—rise
building
or
if subject to downdrafts from nearby structures.
Moreover, although Section 9(a) may be accurately characterized
as the “general” nuisance section, a transgression of the
provisions of that section
is no less
a violation than
is
an
exceedance of the limitations
identified within any other
section.
This section specifies the allowable levels of particulate
matter emissions
from new process sources.
This section outlines certain ways
in which an objectionable
odor nuisance may be determined to exist.
76-321
—21—
The concept of
a “prima facie defense”
is not applicable in
a permit aopeal, where the burden of proof
is on the applicant.
Assuming, arguendo,
that the prima facie defense asserted by
Wells existed,
it nevertheless would be overcome
in this instance
by the volume of citizen complaints
found
in the Agency record.
The Agency failed
to consider
the Section 33(c)
factors
Finally, Wells states that the Agency should have considered
the factors enumerated
in Section 33(c)
of the Act, but did
not.
Wells argues that if the Agency had considered
these
factors,
it could not have properly denied the permit application
(Wells’ Brief,
p•
24).
The Agency,
on the other
hand, believes
it does not have
to consider the
33(c)
factors
in reaching
decisions on permit applications (Agency Brief,
o.
22).
We believe, as
a matter
of
logic, that the Agency should
consider the 33(c)
factors when considering whether
a violation
of Section 9(a) of the Act or Section 201.141 of the air
pollution regulations may occur
as a result of
the issuance of a
given permit.
In determining whether
to issue
a permit pursuant
to Section 39
of the Act, the
sole criterion to be used by the
Agency
is whether
a violation of the Act or regulations might
occur
if the permit
issues.
The Supreme Court’s Wells decision
clearly indicates that the analysis used to determine the
existence of
a statutory nuisance violation
is served
by
application of the 33(c)
factors.
The Agency therefore should
have reviewed
t’hose factors dun9
the process
of
reviewing the
application at issue
in this case
This shortcoming, however,
is not fatal
to the Agency’s
position.
Again,
the Board’s review
in permit appeal cases
is
not of the process used by the Agency
in reaching its
determination (see p.
17,
supra).
Rather,
the Board’s role is
to
decide
for itself whether, based
on the facts before
the Agency,
the applicant has shown that issuance of the permit will not
cause
a violation of the Act or regulations (see pgs.
6—7,
supra).
Thusly, the process used by the Agency in arriving at
its decision
to deny a permit aoplication has no bearing
on the
outcome of a permit appeal.
That is dependent solely upon the
Board’s findings on review.
We note that the desirability of
review of 33(c)
factors by the
Agency
in
instances of potential nuisance violations does not
equate
to
a need for the Agency to develop the record necessary
to make
a
33(c)
evaluation.
Since the burden of proving that
a
violation will not occur
is imposed by Section 39(a)
of the Act
on the permit applicant,
it
is the permit applicant who should
provide the
information.
76-322
—22—
SUMMARY
In sum, we conclude that for all the reasons given above,
Wells has not met its burden
of proving that no violation of the
Act or air pollution regulations would
result if the permit
in
question
in
this proceeding were
to
issue.
The greater weight
that must be ascribed
to Section 33(c)(i) here than in the prior
oroceeding, due
to the substantially greater
interference with
the enjoyment of life or property that is being caused by Wells’
emissions today,
results
in
a finding that Wells has not overcome
the contention that its emissions might
in fact cause
a violation
if permitted.
We note, however,
that this decision will not
in and
of
itself force Wells to cease
its otherwise valuable activities and
close
its doors.
The Agency has left open the possibility of
reevaluating Wells’
permit upon submission by the Petitioner
of
certain
information specified
in the Agency denial letter
(Joint
Ex.
1).
Submission of this information, which
is requested by
the Agency for the purpose
of allowing Wells
to make its case
that its emissions are not causing
a violation of the Act and air
pollution regulations, may be sufficient to overcome the Agency’s
determination made below
(in the absence of such information)
that Wells’
emissions may be currently causing
a nuisance
violation.
This Opinion constitutes our finding
Qf fact and
conclusions of law
in this
//Jacob D.
Dumelle,
Chairmap-..~
R~T11aldC.
Flemal, Board
ember
Bi
1 Forcade, Board Member
I,
Dorothy
M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion was filed
on
the
~
day of
~77~L~-
,
1987.
Y7L
Dorothy M/ Gunn,
Clerk
Illinois Pollution Control Board
76-323
