ILLINOIS POLLUTION CONTROL BOARD
September
5, 1985
VILLAGE OF ADDISON,
)
)
Complainant,
)
)
v.
)
PCB 84-161
)
L
&
S INDIJSTR1S.
INC.,
)
)
)ondent,
)
LOFTUS, DUFF
‘~RITY, LTD.
(MR. HUBERT
J. LOFTUS AND PATRICK
~i.
LOFTUS, OF
C0~~L)
APPEARED ON BEHALF OF THE COMPLAINANT.
MR.
LAWRENCE
fJlL:AN,
PRESIDENT OF L &
S
INDUSTRIES,
INC.,
A
NON~
ATTORNEY
APPE?~P.fT)
ON BEHALF OF THE RESPONDENT.
OPINION
AND
0R~Tht OF
THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon
an
October
31,
1984
Complaint filed
by
t:he
Village of Addison
(Village) which alleged
that the Respondent,
L &
S Industries,
Inc. (LSI), operated
its
electroplating
end
heat treating plant
in such a manner
as
to
cause odors and air pollution
in
violation of Section 9(a)
oF
The
Illinois Environmental Protection Act
(Act) and noise pollution
in violation of Section 24 of the Act.
Additionally, the
Village
has stated that LSI dumped chemicals into the Village’s
sanitary
sewer system and stored toxic materials in the backyard of
the
LST site.
Hearing was held on March 28, 1985 at which members
of
the
public were present.
LSI operates
an electroplating and heat treating facility
at
920 National Avenue
in Addison, Illinois which heat
treats and
zinc
chromates various metal parts such as
bolts,
plates, screws,
nuts,
and fasteners for industrial use.
Before the metal
parts
are
placed in LSI’s heat treating furnaces, they are washed
with
an alkaline soap
to
remove the oil which was originally put on
the
metal piece
by
the manufacturer.
Because some parts are
coated with heavier grease and oil which cannot
be completely
removed by washing, some smoke and odors are apparently generated
when the parts are placed in LSI’s heat treating furnaces.
After
the
heat treatment, these
parts are plated at one of the
company’s
three
zinc
plating
lines.
LSI
was
required
to
cease
the
plating
operation
as
of
December
1,
1984,
pursuant
to
a
cc~r~
order.
(R.
108-110;
R.
121;
R.
149).
LSI
also
generates
a
hazardous
waste
from
its
wastewater
treatment
operations,
whd;:h
is
known as F-O06 pursuant to
35
Iii.
Adm.
Code
721.131,
and
which is stored in three yard hoppers and 55-gallon drums.
The
LSI
site is,
t.he:~efore, classified by the Agency
as
a
storage
facility.
(See;
Village’s Exhibits
#5,
6
&
17).
65-405
-2
LSI is located in an industrially zoned area known
as
the
Addison Industrial Park which is adjacent to
a residential
neighborhood known as the Heritage Subdivision that
is zoned
for
single-Family and duplex dwellings.
The Village of Addison’s
zoning ordinance has set up a
100 foot buffer zone between
the
the Heritage Subdivision and the Addison Industrial Park.
(R.
171-188; and Respondent’s Exhibit
#1).
Two overhead doors
in the
back
of
LSI
building
are
allegedly
opened
on
some
days
allowing
noises
from dumping treated screws, bolts, and metal parts into
large metal bins and from the paging system to disturb residents
of
the Heritage Subdivision.
Before reaching the factual questions,
the Board must
determine what has been properly alleged by the Village.
Noise
and odor pollution are clearly alleged in the complaint as
violation of Sections
9(a) and 24 of the Act.
These are the only
violations expressly alleged in the complaint.
However, the
complaint also states
(under
a heading concerning the manner and
extent of violation) that “pollution is from high levels of
Cyanide, Cadmium, Total Chromium and Zinc dumped into the Village
sanitary system, spillage and open storage of hazardous wastes
in
undated, unlabeled deteriorated containers.”
Further,
in its
memorandum filed on May 23, 1985,
the Village asserts that
“L
&
S
Industries admits they are presently violating E.P.A. regulations
by its storage of toxic waste for over a four month period”
and
“admits that it has polluted Addison’s sewer system through the
dumping of chemicals.”
(Memo. pp.
3-4).
However, nowhere in the
record does the Village cite any Section of the Act or any Board
rule which was violated regarding discharges
to the sewer system
or storage of toxic waste.
Further, the sewer discharge problem
has apparently been litigated in the circuit court.
(Memo. pp.
2-3 and R.
107).
The record is silent regarding any court action
involving the toxic waste storage.
From the face of the complaint it is unclear whether any
violation other than noise and odor is alleged;
the discharge to
the sewer and the waste storage could reasonably be read as
causes of the alleged odor violation.
Further, it is unclear
what the Board’s jurisdiction over the sewer discharge violation
may
be
in
light
of
the
circuit
court
action.
Finally,
if
the
Village
intended
to
include
these
allegations
as
part
of
its
complaint,
it
could
have
amended
the
complaint
to
conform
to
the
proof,
but
it
did
not
do
so.
The
Board,
therefore,
concludes
that
the
only
allegations
properly
at
issue
here
are
the
noise
and
odor
allegations.
Noise
Pollution
The
Village
alleges that
LSI
violated
Section
24
of
the Act
which
prohibits
any
person
from
emitting
“beyond
the
boundaries
of his property any noise that
unreasonably
interferes
with
the
enjoyment
of life...,
so as to violate any regulation or standard
adopted by the Board”,
In support of the alleged noise pollution
violations,
the
Village entered into evidence noise survey tests
65-406
which were conducted by the
Agency
on
the
perimeter
of
LSI’s
property.
The Village further
presented
testimony
by
several
witnesses who live in the vicinity of LSI’s
plant.
The first noise test, conducted on June
7, 1978,
indicated
no violations of the numerical noise standards
of
35
Ill. Adm,
Code 901.102(a)
or
(b) which
establish
limitations
for
sound
emitted to Class A
(residential)
land during the daytime and
nighttime hours,
respectively.
(Village Ex.
6).
An
April
12,
1979,
test,
however,
shows
violations of Section 901.102(b)
of
6-
15 dB above 1000 Hertz and violations of Section 901,102(a)
of
4-
7 dB in the 4000 and 8000
Hertz
octave
bands
when
the
heat
treating and plating equipment was
operating.
(Village
Ex.
7).
An April
1,
1980,
survey
indicated
violations of the daytime
standards
of
1 dB at 1000 Hertz and
4 dB at 2000 Hertz when the
exhaust fan was operating and violations of nighttime standards
of 2-15 dB
above
250
Hertz,
A
May 19,
1982, survey shows daytime
violations
of
3-11 dB above 2000 Hertz and nighttime violations
of 5-22 dB above
500 Hertz,
In
addition,
the
Village
presented the testimony of several
area
residents,
Mrs.
Betty
Burrows
indicated
that
when
the
overhead doors
are
fully
open,
loud
noises
from
LSI
disturbed
her
sleep
and
comfort,
and
that
the
facility
has
always
been
noisy.
(R.
22-23).
Mr,
James
Burrows,
her husband, testified that
when
LSI opened in
1978
there was
excessive
noise
from
the
dumping
of
screws and he
suggested
that
the
overhead
doors be closed at
10:00 p.m. which LSI subsequently “did most
of the time, not all
the
time.”
(R.
40).
Mrs
Barbara
Mariaz
similarly
testified
that
noise from LSI has disturbed her since
1978
and
that
it
is
“most
annoying at night
because
it
prevents us from sleeping,
especially people who work are woken
(sic) up by banging on the
drums,”
(R.
54-70).
Mrs. Christine Lesny, who has lived in the
Heritage
Subdivision
for
13
years,
testified
in
regard
to
various
photographs
she
took
from
her
home and backyard that showed LSI’s
facility
with
its
doors
opened
and
testified that, when the doors
are
open,
she
can
hear
the
regular operating noise of machinery
and
“you
can
even
hear
the
paging
system”
which disturbs
residents
during
daytime
and
nighttime
hours.
(R.
71-78),
Mrs.
Pat
Rataj,
who
lives
“about
four
or
five
houses
down”
from
LSI
testified
that,
even
with
her
windows
closed,
she
and
her
family
were
greatly
disturbed
by
noise
from
the
open
overhead
doors
and
the
truck deliveries to the company.
(R.
84-88).
Even when the
company has
closed
its overhead doors, Mrs. Rataj stated that the
noise, although diminished, was still highly disturbing.
(R.
86-
87).
Although she complained to LSI
on
numerous
occasions,
“sometimes somebody gets on the phone that doesn’t even
understand English, and
I have to yell and scream at him to
please, please,
close
the
doors,”
(R.
87).
However, she noted
that
sometimes
the
overhead
doors
are
eventually
closed
“if they
understand what
I
am
saying.”
(R.
91
and
92).
LSI presented some witnesses on
its
behalf.
Mr. James
B.
Thomas, maintenance supervisor at LSI, testified
that
the company
65-407
has installed
sound
absorbing material and placed
a
rubber-like
lining in the shakers; reduced the speed of some of the exhaust
fans
and placed electronic locks on the overhead doors so that no
one
can
open
them
at night in an effort to eliminate complaints
from
neighboring
residents.
(R.
132-134).
Mr.
Thomas
further
stated the pounding noises
at night probably come from a nearby
company’s operations, and that
on two occasions when neighbors
complained about noise, he
was the only one in
the
plant
and
no
noise was coming from the facility.
CR.
135-139 and
147).
Mr. Roger Kwit, the LSI plant
manager, stated that
the
Company tried to keep the
back
doors
closed
but
sometimes
employees opened them,
and had, since
the plating operations
were
eliminated, reduced about
70
of the noise from plant
operations.
CR.
148-156).
Mr. Kwit
also said that
his
name
was
on the top of the list that was distributed by the company along
with his home phone number where
he could be
reached at night.
Over the past year, he stated that he
only received one telephone
call at night and indicated
that whenever he received any calls
about the back doors being open, he
closed
these overhead doors
right away.
(R.
154).
Mr. Lawrence Stefan,
the President
of
LSI, testified as
follows:
I have sympathy for the
people that live behind
me, but I also have
sympathy for myself with
regard to the problems that you
people have
created
for
me.
I
think
it
is
a
city
problem...
We attempt to keep the doors closed.
We put locks
on
the
doors
to
keep
them closed at night.
Many
times employees open the doors because it is hot,
and if you people would call, we would close the
doors.
I apologize to all of
you,
if you call and
you
get
somebody
that
is
a
little bit vulgar on
the other end of the phone.
People pick up the
phone that shouldn’t
pick up the phone, but they
do.
With regard to the
noise that emanates out
of
the back
of
the
plant,
I
believe the EPA has come
there many, many times, and
these exhibits which
I
just mentioned a few
moments
ago,
show
that
basically our company is not
violating the noise
ordinances
of the State
of Illinois if the doors
are closed,
(R,
189—191).
The exhibits referred
to (Village’s Exhibits 9-14) do
not
support Mr. Stefan’s claim of
basic
compliance.
Rather, those
exhibits reinforce the testimony
of the area
residents
that noise
emanating from LSI causes interference
with their sleep and
normal leisure time activities,
The Board finds this
interference to be frequent and substantial,
especially
at night
and especially when the
overhead
doors are open.
While there is
some reason to believe that the extent
of
interference
has
been
reduced since the elimination of the plating operation,
there is
no indication that the interference
has ended,
65-408
AIR
POLLUTION
The Village also alleges a
violation of Section
9(a)
of the
Act which proscribes
air pollution,
which in turn is defined in
Section
3(b)
of the Act, in
relevant part,
as “the presence
in
the
atmosphere
of
one
or
more contaminants in sufficient
quantities and
of such characteristics and duration as to
unreasonably interfere with the enjoyment of life or property.”
The Village alleges that such unreasonable interference resulted
from smoke and
odor
emissions
from LSI’s property.
At
hearing
various
residents
testified that their lives had
been unreasonably disturbed
and disrupted by excessive smoke and
odors from
the LSI’s
facility.
Mrs. Burrows testified that she
sometimes
spotted heavy
black smoke coming from the LSI’s
plant
and that
odors
“like
burning oil or rubber burning” would
sometimes
accompany
the
smoke,
(R.
14-19).
She testified that
the
fumes
were
powerful
enough
to irritate and burn her eyes and
prevent
her
family
from
sitting
in
the
backyard or
opening
the
windows
during
those
times
that the smells and smoke would be
present.
(R,
20-21).
She
stated
that the smoke started around
September,
1984
and
was
heaviest
around that period
(~.
21-23)
and
that,
although
the
smoke and odor problems are intermittent,
they
are
severe
enough
to
greatly disturb her.
Mrs
Mariaz
testified
that approximately
45
of the time
there
is
smoke
emitted
from the LSI facility and that “when the
doors
are
open,
it
seems
the
smoke comes
out of the door” but
“when
the
doors
are
shut,
it
comes out
of the chimneys, through
the
vents”
which
LSI
installed,
(R.
66-67).
Although stating
that
the
smoke
problems
are
secondary to the noise problems, Mrs.
Mariaz
pointed
out
that
the
smoke problem has become “worse
within
the
last
two
years.”
She did, however, admit that
the
smoke
she
was
speaking
of
could well
be steam “because spmetimes
it is lighter and
sometimes
it
is darker” and also admitted that
the majority of the smoke complained
of
is from Tedio’s
operations which are next door to LSI’s facility.
(R. 67-68).
On the other hand, Mrs. Lesny testified that photographs she had
taken showed smoke emanating
from the doors at LSI’s facility.
CR.
71-78 and Village Exhibits
4A and 4B).
Mrs.
Rataj complained
of smoke billowing out of the
plant’s chimney and an odor “like
a
burning rubber smell” which
interfered with the enjoyment of her
home and property,
(R.
96-101).
Mr.
Thomas testified on behalf
of
LSI that absolutely
no
smoke emanates from the chimney on LSI’s
plant because of
various
process changes made about a year and a half ago to eliminate the
smoke
CR. 127-134).
In fact, he stated that there is no chimney
and that while white vapor is emitted
from a cooling tower and
is
visible, especially at night and during cool weather,
it is only
water vapor and contains no odor,
(R.
132-139).
He believes
that the smell may come from some other
plant.
(R. 133,
136).
In addition, Mr. Kwit stated that the company ceased its plating
65-409
—6-
operations in the beginning of December,
1984,
and that while LSI
periodically let smoke out the back doors before that time
whenever straight hardening was done,
it subsequently eliminated
the smoke by cutting its chemical usage
of nitrogen and adding
natural
gas.
CR.
149-153).
Mr. Stefan reiterated this view, stating that LSI modified
its process, “and the smoke that was in
the
plant
and
came
out
of
the plant
is not there anymore.
I think the smoke that you
people see,
or you think the smoke you have
seen, comes
off the
cooling tower,
It does not pollute.”
CR.
190).
When asked why
there is
a discrepancy between
his
testimony
that
there
was no
odor coming from his plant and the testimony of Mr. and Mrs.
Burrows along with their log delineating the times when odors
were detected, Mr. Stefan indicated that he had detected such
strong
odors coming from the LSI facility.
He
elaborated
that
“there has been odors
in the past,
I
wouldn’t deny that.
I don’t
believe there is
(sic) odors coming from the plant now,
and
I
think what you think is
smoke is not smoke, but it is steam”.
CR.
204-205).
Thus, Mr. Stefan has admitted past odor emissions,
but contends that those emissions have ceased.
Based on all of the evidence noted above,
the Board finds
that odors from LSI’s
facility caused interference with the
enjoyment of the life and property of nearby residents up to the
time of process changes
at the LSI facility eighteen months
prior
to hearing.
There is no evidence to rebut the citizen testimony
until that time,
However, the Board
cannot
find
that
odors
continued to interfere with area resident’s enjoyment of life and
property after that date,
The Village has failed to prove that
allegation by a preponderance of the
evidence in that most of the
references to odors are associated with smoke from a “chimney”
that
apparently
is
a
cooling
tower
that
emits
no
odors,
and
there
is little or no proof of other significant odor emissions from
the
LSI
facility.
SECTION
33(c)
FACTORS
The Board may find interference with the enjoyment of life
solely based on testimony describing the impacts of noise or
odor,
However, to evaluate whether those noise
or odor impacts
are “unreasonable,”
the Board must evaluate a series
of factors
listed
in
Section
33(c)
of
the
Act:
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
65-410
—7-
4.
The technical practicability and economic
reasonableness of
reducing
or eliminating the
emissions, discharges or deposits resulting
from
such
pollution source.
The
“unreasonablenesC of
the
noise or odor pollution must be
determined in reference to these statutory criteria.
Wells
Manufacturing
Company
v. Pollution Control Board, 73 flLZd 226,
383 P4.E.2d 148 (1918); City-o’f’Monnrouth’v.-toflution Control
Board,
57 111.24 482,
313 LE.zd 161 (1974).
The citizen testimony makes it clear that noise violations
and odor violations prior to process changes caused significant
and unreasonable interference with the health, general welfare
and physical property of
the
area
residents.
Their
ability to
sleep
has
been
impaired
as
has
their
ability
to
enjoy
their
properties,
and
such
interference
has
persisted
for
several
years.
Second, the Board is to consider
the
social
and
economic
value of the pollution source.
While
it
is
clear
that
LSI’s
facility does have social
and
economic value to its owners,
employees, and customers, LSI’s method of operation is such that
its social value is reduced by the pollution it causes and by its
unreasonable
interference
with
the
rights of local residents to
utilize
and
enjoy
their
homes
and
property.
Third,
there
is
no
question
that
the
residents
of the
Heritage
Subdivision
have
clear
priority
of location, as almost
all
of
the
complaining
residents
have
lived
in
the
area
for
many
years before LSI commenced its operations in the area.
Qne
of
the inherent problems involved here is that there exists a
proximity between the industrial and residential zones which
exacerbates
any
noise,
smoke,
odor,
or
hazardous
waste
storage
problems that occur.
‘While LSI’s plant is in a location zoned
for
light
industrial
activity,
it is expected to observe the
environmental
standards
which
are
used
to
regulate
such
industrial
properties.
Fourth,
LSI
has
not
contended
that
it
is
technically
practicable
and
economically
reasonable
to
reduce
noise
and odor
emissions
to
meet
Board
standards.
Although
LSI
has
claimed
a
willingness
to
correct
the
environmental
problems
and
have
taken
various
steps
to
rectify
the
situation,
the
fact
remains
that
the
problems
have
persisted
over
a
long
period
of
time.
Mr.
Stef an
has
indicated
that
he
f eels
that
the
residents
of
the
Heritage
Subdivision
have
“hassled”
him
by
excessively
complaining.
(R.
214-215)
•
He
has
demonstrated
a
rather
inflexible
and
noncooperative
attitude
in
his
dealings
with
the
Agency.
CR.
79—83;
R.
119-120;
R.
145-146;
R.
169-170;
R. 189-190;
R. 192—193).
The
Board
believes that
such sn attitude reflects an instransigency which requires
66-411
-8-
assurances that environmental violations
will
be
corrected
and
necessitates
a penalty to aid in the enforcement
of the Act,
In
evaluating all the facts and circumstances of the instant case,
and analyzing all testimony and exhibits presented at the
hearing,
the Board finds that
a $1,000 penalty is appropriate.
ADDITIONAL NATTERS
The record before the Board is presently inadequate for
the
Board to order any particular remedial actions.
The
last
noise
survey
in the record is from May 19,
1982.
LSI contends that
operational changes since that time have
significantly
reduced
the
noise.
While the record does
contain
sufficient
evidence
to
conclude that noise violations continue,
it does not contain
sufficient information on the extent of present non-compliance
nor
does
it offer any further specific actions
which
could
be
taken to assure compliance.
Therefore, the Board will order LSI to
prepare
a
report
evaluating,
to
the
maximum extent possible,
the
type
and
degree
of noise and
odor
reductions possible by
changes
in
operation
or
construction of noise and odor reduction
devises.
This
report
should
be prepared by a competent individual or firm, and should
evaluate all methods of control
(not just those
already
discussed).
Each control option should
include
anticipated
pollution
reductions, cost
of
implementation and
an
estimate
of
a
reasonable
time
for implementation,
The
Board
will retain jurisdiction in this case pending
receipt of the report, and final disposition of this matter,
The
report is
to be filed with the Board and the Village
not
later
then
December
1,
1985.
Unless
a
motion
requesting
a hearing
on
the
contents of the report is received by
December
30,
1985,
the
Board
will proceed
to
issue
a
final
Order
regarding
compliance
as
soon as possible thereafter,
The Board also notes
that it views with considerable concern
the
apparent violations of the hazardous waste
storage
rules,
While the
Board has decided that no violation could be
found
in
this
roceedin
since
that
allegation
was
not
properly
pleade~7
suc
conclusion
in
no
way
is
intended
to
indicate
that
the
Board
condones such actions.
Presuming that the admitted violation
persists,
the
Board
urges LSI to take immediate action to
properly
handle
the
wastes
in
order
that
the
public
health
and
welfare be protected and
to
avoid
further
potential
liability.
This Interim Opinion constitutes
the
Board’s
initial
findings
of
fact
and
conclusions
of
law
in
this
matter,
65-412
—9
ORDER
1.
The
Board
finds
that
L
&
S Industries,
Inc.
has violated
Sections
24
and
9
of
the Environmental ProtectiOn Acts
2.
within 30 days
of
the
date
of
this
Order,
LSI
shall,
by
certified check or money order payable
to the State
of
Illinois,
pay a penalty of $1,000 which
is to
be
sent
to:
Illinois
Enviromental
Protection
Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
3.
LSI
is
ordered
to
submit
to
the
Board
and Complainants, not
later
than
December
1,
1985,
a report on methods of reducing
or
eliminating
noise
and
odor pollution at
its facility
consistent
with
the Opinion.
Such report shall be prepared
by
a professional engineer or other qualified consultant
in
consultation
with
the
Agency
to conduct all necessary tests
to see that all improper smoke,
odors, and emissions are
eliminated and
to insure that the Respondent
is in
compliance
with
all
applicable
air
pollution
standards.
4.
The Board will retain jurisdiction
in this matter pending
receipt of the
report.
Unless
a motion for hearing on
the
contents of
that report
is
received
by
December
30,
1985,
the Board will proceed
to issue
a final Order
in this
matter..
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of
the Illinois Pollution Control
Board,
hereby certify that the above Opi ion and Order was
adopted
on
the
_______________
day
of
_____________,
1985
by
vote
of
~7—O
~orothy
M.
G
n,
Clerk
Illinois
Pollution
Control
Board
65-413