ILLINOIS POLLUTION CONTROL BOARD
August 6, 1987
WILLIAM AND DELORES CARTER,
Complainants,
and
LEROY AND MARGUERITE STANLEY,
Intervenors.
v.
)
PCB 83—132
DUNN COMPANY,
Respondent,
OPINION AND 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 claims 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. 1111/2, 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. On March 9, 1987, Dunn objected to the introduction of new
evidence by way of post hearing submissions. To the extent the
post hearing filings contain new information, the objection is
sustained, and any such information will not be considered by the
Board.
Dunn operates a small batch mixing asphalt plant, with
associated sand and gravel piles, at 724 N. Mercer Street,
Decatur, Illinois. The Carters live at 755 N. Mercer Street, and
share a common lot line with Dunn (Resp.
Ex. No.
4). At hearing,
testimony was received from interverior LeRoy Stanley of 830 N.
Mercer. In addition, the original complaint in this proceeding
was accompanied by complaint forms from twelve individuals in the
general area of 600—800 north on Mercer and Pine Streets. The
original complaint and testimony at hearing object to dust and
odor from Dunn.
Dunn’s operation is a batch mixing asphalt plant,
manufactured by “Waite.” The process employs stockpiles of
aggregate which are placed in cold feed bins by end loaders.
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This is then fed by enclosed belt conveyor to a cold feed
elevator that raises the aggregate to the gas—fired rotary
dryer. The aggregate from the dryer is fed into the hot elevator
and raised to the hot bins. The aggregate is then screened,
weighed, and fed into the pug mill where the hot asphalt is
added, all ingredients are mixed and dumped into waiting covered
trucks and hauled away.
The plant is capable of mixing 90 tons per hour. The
control for this asphalt plant is a cyclone and “custom built”
baghouse model 224DS with 3,584 square feet of surface area;
filter material is 1402 Noinex. With an efficiency of 99.96, the
gas flow is 20,000 ACFM with inlet temperature of 250 F. and exit
temperature of 225 F. through a rectangular stack 22 inches x 25
inches and height of 42 feet above grade.
The baghouse is connected to the asphalt plant at the feed
end of the aggregate dryer, the hot storage bin, and the pug
mill. The material collected is returned to the system via the
hot elevator (Respondent Ex. No. 11).
Dunn’s efforts to control dust and odor focus on two areas:
the cyclone and baghouse control process emissions; fugitive
emissions are controlled by periodic oiling of unpaved areas and
a fence around the facility. Process emissions are estimated at
0.89 tons per year of particulates. Odor emissions are not
quantified. Fugitive dust emissions are approximately 10 tons
per year (Resp. Ex. Nos. 11,12,13).
At hearing, the Carters asserted that Dunn is operating in
violation of certain municipal zoning requirements (R. 27); the
Board will not rule on this claim. The Pollution Control Board
is not a proper forum for resolution of alleged zoning
violations. Second, the record indicates that Dunn’s operation
has met all necessary zoning and Environmental Protection Agency
(hereinafter “the Agency”) permitting requirements (Resp. Ex.
Nos. 4, 7—24). The sole question before the Board is whether
Dunn’s operations are in violation of Section 9 (a) of the Act.
The Act and judicial interpretations adopt a “public
nuisance” approach to dust and odor problems. The Act defines
and prohibits unreasonable interference with the enjoyment of
life or property from air pollution:
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 3
b. “AIR POLLUTION” is the presence in the
atmosphere of one or more contaminants in
sufficient quantities and of such char-
acteristics and duration as to be in-
jurious to human, plant, or animal life,
to health, or to property, or to unrea-
sonably interfere with the enjoyment of
life or property.
Board regulations at 35 Ill. Adm. Code Sections 201.102, “Air
Pollution” and 201.141 “Prohibition of Air Pollution” contain
identical language to the Act. There have been several judicial
interpretations of the “unreasonable interference” air pollution
lancuage. See: Incinerator, Inc. v. Pollution Control Board, 59
Ill.2d 290, 319 N.E.2d 794 (1974); Mystic Tape, Div. of Borden,
Inc. v. Pollution Control Board, 60 Ill.2d 330; 328 N.E.2d 5
(1975); Processing & Books v. Pollution Control Board, 64 Ill.2d
68, 351 N.E.2d 865 (1976).
The judicial interpretation of an “unreasonable
interference” proceeding which is most closely related to this
case is Ferndale Heights Utilities Company v. Illinois Pollution
Control Board and Illinois Environmental Protection Agency, 44
Ill.App.3d 962, 358 N.E.2d 1224 (First District, 1976),
(hereinafter “Ferndale”). While that proceeding involved noise
pollution, rather than air pollution, it does provide definitive
judicial guidance on the validity of the “public nuisance”
concept and what type of evidence is necessary to support a
finding of violation. In Ferndale, the Board found that Ferndale
Heights Utilities Company had violated the regulatory public
nuisance standard in their operation of a pumping station. On
Appeal, the Utility Company argued that the regulatory language
of Section 900.102 was unconstitutional in that it did not
contain sufficient standards for determining what constitutes
“noise pollution” and argued that the narrative testimony at
hearing lacked sufficient specificity to sustain a finding of
violation of noise pollution. The Ferndale court found the
regulatory language, when viewed in the entire statutory
framework, including the factors listed in Section 33(c) of the
Act, was sufficiently specific to pass constitutional muster. In
evaluating the adequacy and specificity of the citizen testimony,
the court stated:
Ferndale next asserts that the Board’s
order should be reversed because its finding
of a violation of Rule 102 is contrary to the
manifest weight of the evidence. Specifical-
ly, Ferndale argues that the Pierson testimony
failed to provide dates and times of noises,
failed to show any disturbance in his house,
failed to show physical damage to himself or
any person or property, failed to show that he
never lounged or entertained guests in his
yard and failed to show when and how often he
did not lounge or entertain guests in his
yard. Other alleged testimonial deficiencies
involve failure to cite dates and times when
activities such as patio parties were pre-
vented or when the various witness’ sleep was
interrupted. However, agency witnesses used
such terms as “almost constant this summer”,
“five times this past summer” and “awakened
once or twice this year” to describe generally
how often they were disturbed by the noise
emanating from the pumping station. Terms
such as “a great source of irritation”, dis-
turbing”, “like ten air conditioners running
at the same time’t and “like a lawnmower
running all day under my window” were used to
describe the effect of this sound upon the
individuals.
Based upon such testimony, the Board
properly found that the character and degree
of interference with the enjoyment of life and
lawful activity occasioned by sounds emanating
from Ferndale’s pumping operations to be
“unreasonable.” Our review of the record does
not mandate a contrary conclusion. (id.)
These statutory and judicial standards provide the guidance
by which the Board must evaluate the record in this proceeding.
The Board may find severe and frequent interference with the
enjoyment of life solely based on testimony describing the
impacts of the dust arid odor emissions. However, to evaluate
whether those impacts are “unreasonable,” the Board must evaluate
a series of factors listed in Section 33 (c) of the Act:
***
C. In making its orders and determinations,
the Board shall take into consideration
all the facts and circumstances bearing
upon the reasonableness of the emissions,
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discharges, or deposits involved includ-
ing, but not limited to:
1. the character arid degree of injury
to, or interference with the pro-
tection 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.
The “unreasonableness” of the noise or odor pollution must be
determined in reference to these statutory criteria. Wells
Manufacturing Company v. Pollution Control Board, 73 Ill.2d 226,
383 N.E.2d 148 (1978); Mystic Tape, supra; Incinerator, supra,
City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 313
N.E.2d 161 (1974). However, complainants are not required to
introduce evidence on these points. Processing & Books, supra.
The Board’s first duty in a proceeding of this type is to
review the record to determine whether there are emissions of
dust and odor and whether those emissions cause a frequent and
severe interference with the enjoyment of life. There is no
dispute that Dunn facility is a source of dust emissions. Dunn
introduced Agency inspection reports which estimate process
particulate emissions at 0.89 tons per year and fugitive
particulate emissions at 10 tons per year (Resp Ex. Nos.
11,13). Agency inspectors have observed visible fugitive dust
emissions on some occasions (Resp Ex. Nos. 21,23), and not
observed emissions on other occasions (Resp.
Ex. Nos..7,l5).
Testimony at hearing by complaining witnesses confirm dust
emissions from Dunn (R. 19,27,33,37,46).
There is also no question that the Dunn facility produces
odor emissions. Dunn introduced an Agency inspection report
(Resp. Ex. No. 14) which states, “The Agency inspector) visited
Dunn Co. and asphalt odor was detectible approx. 1 1/2 blocks
from plant. Odor was in the direction of the wind which was
blowing from SW towards NE. Odor near the plant appeared no
~0-5
different than normal for asphalt plant processing.” Another
Agency inspection report introduced by Dunn (Resp. Ex. No. 23)
stated, “Plant odors noted by the Agency inspector appear
normal for an asphalt plant; however, the Agency inspector
notes the plant is located next to residential (75’) and even a
small amount of odor can be noticed by people living this close
to an asphalt plant.” At other times, Agency inspectors found no
odors present (Resp. Ex. Nos. 18,21). Testimony at hearing
confirm odor emissions from Dunn (R. 19,31,34,37,38,39).
Based on the record, the Board finds that there are odor and
dust emissions from Dunn which impact the complainants. Next,
the Board must determine whether those impacts cause a frequent
and severe interference with the enjoyment of life. Perhaps the
most succinct description of the impact of the dust and odors was
provided by the Stanleys CR. 18—20; Resp. Ex. Nos 1,2):
We’ve also experienced problems with
maintaining a sanitary home. Dust and grime
has accumulated because of the soot expelled
by the Dunn Company’s operations.
Our
furniture and carpet is virtually destroyed
because of this.
Dusting is virtually
impossible because of the continuous falling
of these dust particles.
During the spring, summer, and later fall
of the year it is extremely difficult for us
to sit on our front porch once Dunn Company
has begun operations. Breathing becomes
difficult, eyes burn and water, and sneezing
follows. My family has developed allergies
which we have never experienced before. Mr.
Stanley suffers with a blockage in his lungs
from causes unknown. Some of our children and
grandchildren have extreme respiratory
allergies that require shots from their
physicians and skin rashes that will not heal.
We have worked hard the past nineteen
years to pay for our home and we would like to
spend the remainder of our days trying to
breathe fresh clean air. However, with the
adverse affect of the gas fumes and grime that
Dunn Company expels we find this virtually
impossible. There must be a solution to this
problem and we hope that you the Pollution
Control Board can help us.
Mrs. Carter also described the severity of the impact:
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We can’t go home and lay down in our nice
clean bed like anyone else. ~e have to beat
our bed. We cannot go home and cook a meal
without washing your dishes or your pots and
pans before you put your food in. We can go
to our home, get ice cubes out, and they are
full of dust. The dust is just as harmful as
the fumes. (R. 34).
***
Q Everyone. All right. Now, with respect
to the emissions from the plant, what are the
strengths of the emissions?
A It’s just like a gas main has broke.
O Well, what is the strength?
A Full strength.
Q Well, define full strength for me.
A If you inhale gas, you normally will get
sick from it. We inhale this, and we are
getting sick from it. CR. 52).
There is also testimony that the emission impacts have been
occurring since Dunn began its asphalt operations and have
continued since that time many, if not most, business days (R.
23,24,28,53). Based on the record the Board finds that emissions
of dust and odors from Dunn are causing a frequent and severe
interference with the complainants enjoyment of life and
property. This interference goes far beyond trifling
interference, petty annoyance, or minor discomfort. The dust and
odors constitute a substantial interference with the enjoyment of
life and property.
Having found a frequent and substantial interference, the
Board must determine whether that interference is “unreasonable”
in light of the four factors described in Section 33 (c) of the
Act. As the Board has already found a frequent and severe
interference with the enjoyment of life and property, no addition
discussion of the first factor is necessary.
Concerning the second of the Section 33
(C)
factors, the
Board finds that Dunn is of social and economic benefit in that
it produces products and retains employees in the State of
Illinois. However, that social and economic benefit is
significantly reduced by the nature of the dust and odor
emissions from the facility.
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The third Section 33 (c) factor concerns suitability of the
pollution source to the area in which it is located and priority
of location. The record contains very little descriptive
information on the area beyond complainants and respondents
property. It is clear that some complainants live less than 100
feet from the source of the emissions (Resp. Ex. No. 23), sharing
a common property line (Resp.
Ex. No. 4). It
is also clear the
Dunn’s present operation is consistent with the local zoning laws
that have been in effect since 1960 (Resp. Ex. No. 4). The
record shows that at least some of the complainants have priority
of location in that they occupied their property before the
asphalt operations began. The facility in question was operated
as a coal company at least 12 years ago CR. 64). Clearly,
intervenor Stanley (Resp. Ex. No. 2) and complaining witness
Whitney CR. 64) have priority of location. The Carters have
lived in the vicinity of the Dunn facility for 25 years CR. 27),
but moved into their present residence in the last six years (R.
50), at which time it appears the asphalt plant was in operation.
Overall, the Board finds that the complainants have the
priority of location, and that the Dunn facility is suitable for
the area in which it is located if dust and odor emissions can be
reduced to acceptable levels.
Concerning the last of the Section 33(c) factors, the Board
must determine whether it is technically feasible and
economically reasonable to reduce dust and odor emissions to
acceptable levels. Because of the nature of this particular
proceeding, the Board must ~valuate dust control and odor control
separately.
The dust emissions have two sources: process dust emissions
and fugitive dust emissions. The process dust emissions amount
to approximately 0.89 tons per year (Resp. Ex. No. 11). The
process emissions are governed by the New Source Performance
Standards of 40 C.F.R. Part 60. All evidence in the record
indicates that the process emissions are rigidly controlled by
stringent standards, and that the facility is in compliance with
these standards at all times. There is no evidence that Dunn
could reduce the process emissions in a reasonable manner. These
emissions compose a very small proportion of overall dust
emissions, are controlled by stringent emission limitations, and
the facility consistently complies with those emissions. For
these reasons the Board does not believe additional reductions in
process emissions can be accomplished in a technically feasible
and economically reasonable manner. Consequently, the Board
holds that the process emissions do not constitute “unreasonable
interference”.
The fugitive emissions from Dunn amount to approximately 10
tons per year (Resp. Ex. No. 13). The sources of fugitive
emissions identified by Agency inspectors or citizen complaints
are : stock piles or storage bins (Resp. Ex. Nos. 13,17), paved
and unpaved areas of the facility (Resp. Ex. No. 12), unloading,
storage and removal of aggregate (Resp. Ex. No. 18), and shutting
down the dust collection line from the mixer (Resp. Ex. Nos.
11,21). Dunn has submitted to the Agency a fugitive particulate
matter control program. That program, in its entirety, states,
“All paved surfaces of the traffic areas leading to our aggregate
stockpiles will be swept with a pick up sweeper monthly, as
needed, during the paving season. All unpaved areas shall be
sprayed with road oil monthly, as needed, during the paving
season. The road oil shall be applied with an asphalt
distributor.” CResp. Ex. No. 12). In addition to the fugitive
dust control program, Dunn has constructed a fence around the
facility, and there are indications that a water spray is used
occasionally to control dust while loading aggregate.
When viewed with scrutiny, the fugitive dust control program
actually requires very little. First, it only applies during the
paving season. Second it only applies “as needed”, whatever that
term might mean. And last, it only requires action, at most,
once a month. While Dunn may do a great deal more to control
dust, it is not required by the fugitive dust control program.
The Board believes that additional fugitive dust control measures
are technically feasible and economically reasonable. If nothing
else, the Board could require that all areas be oiled on a weekly
basis and that water spray be employed constantly while aggregate
loading or unloading is in progress and that water spray be
employed constantly while the dust return line is shut down.
Because the fugitive emissions constitute such a large proportion
of overall emissions, those emissions cause frequent and severe
interference, and additional controls are feasible and
reasonable, the Board finds that the fugitive dust emissions are
causing “unreasonable interference”. Rather than simply ordering
Dunn to increase the frequency of all dust control activities,
the Board will retain jurisdiction in this matter and order Dunn
to prepare a report which specifically identifies all possible
sources of fugitive emissions, and all reasonable methods of
reducing those emissions. In this manner, the Board can attempt
to accomplish the greatest dust reduction with the least
interruption to Dunn’s activities.
The last area for evaluation regarding control is the odor
problem. The Board finds the present record is inadequate to
reach any decision on the source of the odor problems, or
possible methods of control. Since the Board is requiring Dunn
to prepare a report on fugitive dust control, the Board will
defer a determination on the odor issue until that report is
prepared and require as a part of that report that Dunn attempt
to identify sources of the odor problem, and possible methods of
control. In so doing the Board notes that it has already
determined that the odor emissions are causing a frequent and
severe interference with the enjoyment of life to area residents.
80—9
The only matter yet to be determined is whether those emissions
are “unreasonable”.
In summary, the Board finds that process dust emissions do
not cause unreasonable interference, that fugitive dust emissions
do constitute an unreasonable interference, and defers a
determination on the odor emissions pending receipt of the report
Dunn is required to prepare on methods of controlling
emissions. Also, the Board will retain jurisdiction in this
matter until the required report is received. At that time the
Board will specify what additional control measures will be
required.
Dunn will be required to prepare a report on present
operations and methods of reducing emissions, and to submit that
report to the Board and the complainants not later than November
5, 1987. That report should describe in detail the existing
facility, day to day operations, and the location and type of all
existing pollution control equipment. A second part of the
report should describe all possible sources of fugitive dust
emissions, Dunn’s past efforts to control each of those possible
sources, and potential methods which could be used to further
reduce emissions. The report should particularly evaluate the
use of water sprays, or water with a chemical binder, as a method
of additional control. In the third part of the report Dunn must
attempt to identify the sources of odor emissions and possible
methods of reducing those emissions. The Board will allow the
complainants thirty days after the report is submitted to provide
written comments to the Board (with a copy served on Dunn). After
the final comments are received, the Board will proceed to issue
a final order in this matter.
This Opinion constitutes the Board’s findings of facts and
conclusions of law in this matter.
ORDER
1. The Board finds that the Dunn Company, a Division of Tyrolt
Incorporated (“Dunn Company”), 724 North Mercer Street,
Decatur, Illinois, has violated Section 9(a) of the Environ-
mental Protection Act, Ill. Rev. Stat. 1985, ch. ll)~/2, par.
1009(a), through dust emissions from fugitive sources at its
facility. The Board defers a determination on odor emis-
sions.
2. Dunn Company is ordered to submit to the Board and the
Complainants, not later than November 5, 1987, a report on
present operations and methods of reducing emissions. The
report shall describe in detail the existing facility, day—
to—day operations and the location and type of all existing
pollution control equipment. The report shall also describe
80—10
in detail all possible sources of fugitive dust emissions,
Dunn Company’s past effort to control each of those possible
sources, and potential methods which could be used to further
reduce emissions. The report should particularly evaluate
the use of water sprays, or water with a chemical binder, as
a method of additional control. Additionally, the report
shall identify the sources of odor emission and possible
methods of reducing those emissions, such as afterburners or
scrubbers.
3. ~1TheComplainants shall have thirty days from the receipt of
the report described in paragraph two, above, to provide
written comments to the Board, with a copy served on Dunn
Company, regarding the report and the form of remedy
requested.
4. The Board will retain jurisdiction in this matter pending
receipt of the report and responsive comments. The Board
will then proceed to issue a final order in this matter.
IT IS SO ORDERED
Chairman J.D. Durnelle concurred and Board Member J. Theodore
Meyer dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order was
adopted on the ~
day of _______________________, 1987, by a
vote of
~-~—
/
.
/~
/~Y
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
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