ILLINOIS POLLUTION CONTROL BOARD
February 26, 1976
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
v.
)
PCB 73—403
WELLS MANUFACTURING COMPANY,
an Illinois corporation,
Respondent.
-
arid
-
CITIZENS FOR A BETTER ENVIRONMENT,
)
an Illinois not-for-profit corporation,
)
Complainant,
v.
)
PCB 73—418
WELLS MANUFACTURING COMPANY,
)
an Illinois corporation,
)
Respondent.
-
and
-
WELLS MANUFACTURING COMPANY
)
an Illinois corporation,
Petitioner,
v.
)
PCB 74—257
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
Mr. Michael A.
Benedetto,
Jr., Assistant Attorney General,
in
behalf of the Environmental Protection Agency;
Mr. Joseph
S. Wright,
Jr.,, Attorney,
in behalf of Wells Manu-
facturing Company.
Mr. David Sims,
in behalf of Citizens for a Better Environment.
OPINION AND ORDER OF THE BOARD
(by Mr. Goodman):
This matter
is a consolidation of three separate cases concern-
ing Wells Manufacturing Company, an Illinois corporation
(Wells).
The first case, PCB 73-403,
is an enforcement case filed by the
Illinois Environmental Protection Agency
(Agency) against Wells On
September 25,
1973.
The second case is also an enforcement case
brought by Citizens for a Better Environment
(CBE)
against Wells on
October
1,
1973.
The third case,
PCB 74—257,
is a petition for
20—135
—2—
permit review by Wells, filed on July
8,
1974.
The three cases have carried on for some two years
in plead-
ings, motions, and hearings.
Ten days of hearings were held on the
matter starting November
8,
1973 and ending on April
17, 1975,
producing a 1371 page transcript.
Both the Agency and the CBE complaints allege a violation of
Section 9(a)
of
the Environmental Protection Act
(Act)
for the
time period of January
1,
1972 to the date of the filing of the
respective complaints. On August
16, 1974,
the Agency amended its
Complaint to include a violation of Section 9(b) of the Act, alleg-
ing that Wells failed to possess an operating permit, and extending
the dates of violation.
Wells subsequently filed their petition for
review of permit denial.
THE WELLS OPERATION
Wells Manufacturing is a family owned Illinois corporation
which operates a grey and alloy iron foundry in Skokie,
Illinois.
The foundry produces castings used for the automotive, agricultural,
petroleum,
hydraulics, and aircraft industries, and has a rated
capacity of
325 total tons per day, although usually it produces
no more than 275 tons per day
(T.
624, 629).
Wells employs 520
workers
(T.
596) and operates three 8-hour shifts, five days per
week.
After being melted in two 13-ton electric induction furnaces,
molten metal is poured into various molds to form the outside con-
figuration of the castings.
Some of the molds contain a core which
produces the inside configuration of the final product.
The molds
are cooled in a cooling tunnel and transported to an area known as
the
‘shakeout” where the castings are separated from the remains of
the mold
(T.
643—649).
Of the various types of molds produced at Wells,
only the type
known as the shell mold is relevant to this case.
This shell mold
consists primarily of silica sand and small amounts of other materials
as follows
(T.
634)
Acme Resin
3.62
hexarnethylenetetramine
0.445
Water
1.47
Wax
0.236
Acme 75 deodorizer
0.002
The silica sand is heated to about 500°Fand the resin and other
20-136
—3—
materials are coated onto the sand
(T.
637—639).
The sand
is
there-
after placed on heated patterns where it hardens to form the finished
shell mold.
The phenol-formaldehyde resin acts as a binder to hold
the sand in the necessary shape.
The hexamethylenetetramine acts as
a catalyst to set the resin.
The sand coater or rtLuller, the molding machines, the pouring
area,
the cooling tunnel,
and the shakeout and core—making areas
are all potential sources of the odors complained of
in the two
enforcement cases.
The precise chemical composition of these
odors is not fully known other than that they are produced by
the heating of the phenol-formaldehyde resin and the other additives
in the sand.
The sand coater, pouring area,
and cooling tower have, since
about mid-1972, been vented to three bag houses for particulate
removal.
The molding machines and the core—making area are not
controlled at this time.
The shake out area
is vented to a wet
scrubber
(T.
652-662, Agency Ex.
16).
The Wells facility is located in an industrial area adjacent
to a residential area.
Residences are located to the north and
northeast at a distance of about 1/2 mile within the Village of
Morton Grove, Illinois.
Adjacent to the facility on the northeast,
east,
and southeast
is the property and physical plant of Niles West
High School
(Agency Ex.
1).
Citizen Testimony
A great deal of citizen testimony concerning the odor problem
at Wells was presented at the hearing.
A total of 22 citizens testi-
fied in support of the position of the Agency and CBE.
Twelve of
these witnesses were residents of the immediate area,
seven were
teachers at Niles West High School and three witnesses were officials
of the Village of Morton Grove.
The three officials of the Village of Morton Grove included
two Village Trustees and a Village Sanitarian.
Mr. John Hilkin
(T.
35—41),
a Village Trustee, presented a resolution of the Village
Board dated January 28,
1974
(Board Exhibit No.
1).
The Resolution
indicates that the odor problem in the Village of Morton Grove is
long standing and that control measures recommended previously
have not been sufficient ~to solve the problem.
The Resolution also
calls
for a cease and desist Order against Wells with regard to any
manufacturing process that affects the residents of the Village of
Morton Grove.
Mr. Hilkin also indicated that in his opinion Wells
was somewhat reluctant
to recognize the odor problem.
20—
137
—4—
Mr. Edwin Brice, also a Village Trustee,
indicated in his
testimony that he had personally noted smoke and an odor coming
from the Wells facility while attending football practice at
Niles West
(R.
79).
Mr. Brice also indicated that he had experienced
the odor as recently as two months prior to the hearing and that
during hot weather the odor was almost always present.
Mr. Louis Bartmann, sanitarian for the Village of Morton Grove,
testified that his duties as Sanitarian include investigation of
citizen complaints concerning air pollution.
Mr. Bartmann testified
concerning specific comp~aints of foul odors which he determined were
coming from the Wells facility.
This determination was based upon
upwind and downwind observations.
Mr. Bartmann also testified as to
personal observation of a strong phenolic odor coming from Wells
(T.
25-26).
Complaints received by the Morton Grove Health Depart-
ment during 1972 and 1973 concerning odors from Wells were submitted
as Agency Exhibits
3 and
4,
Mr. Bartmann indicating that in nearly
all the instances in which he responded to complaints, they were justi-
fied
(T.
53)
The group of witnesses from Niles West High School included
Nicholas Mannos, Principal of Niles West High School
CT.
59—68).
Dr. MannOs indicated that odors from the foundry had been
a problem
since the school opened in 1958, and that although cooperative,
Wells had not acted until community pressure had been exerted.
Dr.
Mannos,
recalling personally experiencing the odors while using the
Niles West track in the summer of 1973,
further testified that the
odor problem affected the eyes and breathing of the participants in
the school’s outdoor activities.
According to Dr. Mannos, the
present population of thQ school consists of about 2800 students and
175 teachers.
Mr. Donald Huff
(T.
26—35), Mr. James Phipps
(T.
235—246),
Mrs. Jean Armour
(T. 42-50),
and Mr. John Armour
(T.
51-58)
all
testified as to their experiences concerning odors from Wells while
working at Niles West High School in the Physical Education Depart-
ment.
This group of witnesses all testified as to personal ex-
perience with the odor problem at Wells facility and indicated that
they had all received complaints from the various groups of students
they were teaching concerning breathing problems, eye watering and
burning,
etc.
A Science teacher at Niles West High School, Mr. Robert
Hanrahan
(T. 121-130),
indicated that he had personally observed the
odors, particularly
in the general area of the football practice
field.
Among the residents who testified was Michael Langer
CT.
87-98)
who has been a Lieutenant on the Skokie Police Department for eleven
20—138
—5—
years and whose residence
is
1 1/2 blocks from Wells.
Lieutenant
Langer testified as to
a strong odor which he attributes to Wells
Manufacturing, having observed the odor in the area of the Wells
parking lot and during times when he used the Niles West practice
field.
Lieutenant Langer also testified that during 1972 and 1973
he observed the odor approximately 20 to 25 times each year and that
the odor burns his eyes and throat and aggravates his asthmatic
condition,
forcing him to curtail his use of his outdoor swimming
pool and to purchase an air filter for his home.
Mr. James Pritikin
(T.
211-234)
is an attorney living near Wells
who testified that since July,
1972, he has detected an obnoxious,
repulsive and irritating odor coming from Wells.
Mr. Pritikin de-
termined that the odor was coming from Wells by driving around to
the upwind side of the plant where he found no odor present at
a
time when the odor did exist downwind of the plant.
Mr. Pritikin
further testified that his use of his home is severely restricted
and that he is unable to stay outside during the time that the odor
is present.
He has complained to Mr. Wells,
the Morton Grove Health
Department, the Attorney General and the Illinois Environmental
Protection Agency.
Mrs. Carl Pines,
a six year resident of Morton Grove, testi-
fied that she has observed a foul odor at her residence which she
determined was from the Wells Manufacturing plant by driving from
her house to the plant and detecting similar odors at that site
(T.
136-156).
This witness had recorded her observations particu-
larly during the years
1970 through 1974.
She complained that during
the occasions when the odor was present her eyes and throat burned
and she was unable to use her yard.
Mrs. Carol Salinger
CT.
247-262) has been
a resident of Morton
Grove for 16 years and has been affected by the odor both at her home
which
is east of the plant and at the Edison School where she teaches.
Mrs.
Salinger, testifying that she became familiar with the odor of
phenol while obtaining a degree in biochemistry, characterizes the
odor as a phenolic odor.
Mrs. Salinger further testified that the
odor had caused her to refrain from using her yard during the summer
and that she had purchased an electric air filter partially as a
result of the odor.
Eight more residents testified concerning their experiences
with the odor in question.
All have lived in the immediate area of
the Wells plant for up to 17 years and have been affected by the
odor in varying degrees,
ranging from minor irritation to loss of
use of property, problems with breathing due to lung conditions,
keeping asthmatic children inside,
inability to do yard work, and
20—139
—6—
dizziness.
In addition, most of these citizens have filed
complaints with various agencies.
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.
Consider-
ing the number of people testifying and the coincidence of symptoms,
there can be little doubt that the odor exists.
In addition testi-
mony from various of theSe citizens indicates that the source of the
odor is Wells Manufacturing Company,
including at least three who
actually investigated the atmosphere both upwind and downwind from
Wells
to insure that Wells was indeed the odor source
(R 16,
93,
211).
WELLS MANUFACTURING COMPANY
In response to the citizen testimony, Wells offered expert
testimony to the effect that results of certain stack tests made
for Wells indicated an absolute odor level so weak that natural
dispersion would render the odor undetectable more than a few feet
from the stack
(T.
1236).
In addition, Wells claims that the odor
problem originates at another factory in the area. Although the
reference was correctly excluded from the record by the Hearing
Officer,
Wells included an Agency complaint report dated December 29,
1972,
concerning this installation in their trial brief.
Review of
this report, which is not competent evidence, indicates very small
operations with respect to odor production and complainants who
could not agree as to whether the odor source was Wells or the other
installation.
The Board therefore finds, on the basis of the extensive citizen
testimony concerning the characteristics and source of the odor, that
Wells has emitted odors from its foundry in Skokie, Illinois, on an
intermittent yet continuing basis from 1972 until the filing of this
Complaint which has unreasonably interfered with the enjoyment of
life and property.
AVAILABLE TECHNOLOGY
A considerable amount of the record in this case is dedicated
to the issue of whether or not technology exists which would allow
Wells to abate its odor problem.
Three methods of abatement were
addressed by the evidence:
oxidation of the odor by means of ozone;
oxidation of the odor using a chemical
(potassium permangante)
in
a water scrubbing system; and chemical adsorption using activated
carbon as the adsorber.
In addition, the Agency proposed that Wells
purchase precoated sand, thus bypassing at least one source of the
odor generation at the facility,
i.e.
the sand coating operation.
20—140
—7—
Ozone,
a molecular variant of oxygen containing three oxygen
atoms, is a very active oxidizing agent which has the ability to re-
duce odors by oxidizing the odor bearing portions of organic mole-
cules
(T.
939-40).
Dr. Nebel, an Agency witness, testified concern-
ing the use of ozone to control industrial odors,
including the control
of phenol-formaldehyde resin odors
in the manufacture of felt
(T.
912-
1003).
Dr. Nebel conducted tests at Wells
in January,
1974, subse-
quent to an investigation at his laboratory.
A small stream of air
from the various odor producing areas was allowed to enter a “contact
chamber” to which ozone was added.
After each source was treated by
the ozone, an odor panel evaluation was made.
In this odor panel,
a
number of people were presented with random samples of treated and un-
treated air and asked to determine whether or not they detect an odor
in the sample.
We will discuss the various odor panel tests
later in
this opinion.
The result of
Dr. Nebel’s test at Wells was a recommendation
that Wells
install ozone equipment to control odor.
Although economic
factors were stipulated in the record as not bearing on the results of
this case,
the total cost of the ozone installation was less than
$200,000
(Agency Ex.
21 and 22).
Although Dr. Nebel’s testimony resulted in widely divergent in-
terpretation by both parties in their briefs,
it is clear to the
Board that Dr. Nebel’s opinion concerning ozone odor control was
that such a system would work so long as an automatic ozone level
controller was included in the system
(T.
934-940).
Indeed, Wells
in their brief
(p.
29)
states “ozone,
therefore, might feasibly be
used to lessen foundry odors, but as of the close of the record, there
had been no substantial indication that it would be successful.”
Although no further evidence concerning ozone was introduced at the
hearing, Wells has indicated that they are going forward with investi-
gation of this method of odor control.
Based on the record and the
continued interest of Wells in the ozone process and odor elimination,
the Board finds that the ozone method of odor control is and has been
a method of controlling the Wells odor problem.
Another method of odor control considered in the record was the
use of activated carbon, derived from coal and/or coconut shells
which have been subjected to high temperature to obtain a highly
porous product.
This activated carbon has been used to adsorb
organic materials whose molecules physically adhere to the surface
of the carbon through a phenomenon known as “Van der Waal’s forces.”
The activated carbon may be recycled by heating to high temperatures
which drives off the organic molecules and incinerates them.
Mr. Raymond
L. Poltorak testified regarding tests conducted using
activated carbon at the Wells facility
(T.
744-882).
The record shows
that Mr. Poltorak first contacted Wells in February,
1973, concerning
20—141
—8—
the carbon adsorption method but was not requested to run tests
until June,
1974
(T.
761—762).
The tests were conducted by drawing
a small amount of the various Wells emissions through a container
that held layers of the activated carbon.
Test results indicated
that activated carbon adsorption would result in 80
odor reduction,
these results being obtained by an odor panel, much as
in the ozone
method mentioned above
(T.
810, Agency Ex.
19).
Mr. Poltorak also testified that in his opinion a full scale
system would be
a technologically feasible method of reducing odors
at the Wells facilities
(T.
807—810), and that such an activated
carbon adsorption system was in use by Chrysler Corporation to control
odors from a shake—out process in their foundry.
That foundry, how-
ever,
did not use the same binders as those employed by Wells
(Agency
Ex.
20).
During the hearing Marshall Wells testified that the use of
activated carbon adsorption remains a viable alternative upon which
larger scale testing would be warranted
CT.
711).
Upon evaluating the
testimony of the witnesses at the hearing,
the Board finds that the
activated carbon adsorption method is and has been a potential method
of odor control for the Wells facility.
As was indicated in the record,
neither the ozone method nor
the activated carbon method of odor control has been used
in any
other facility under conditions identical to Wells.
The third method of odor control considered in the record is
that of a liquid chemical oxidation system.
This type system uti-
lizes a chemical oxidant, a combination of acid and potassium permanga
nate, which reacts with the odor laden gases
in what is termed a
“packed tower.”
The packed tower allows intimate contact of gas with
the liquid wherein the oxidant converts the odor laden gases to a non-
odoriferous emission
CT. 104).
This type of equipment has been avail-
able since 1956
(T.
205).
Mr. Robert T. Sohr testified concerning this chemical oxidation
system
(T.
79—518)
stating that he had conducted field tests of such
a device at Wells Manufacturing in February,
1973.
No odor panel
tests were conducted during these field trials, Mr. Sohr’s personal
observation being that the odors were quite successfully removed
(T.
160—166)
Evidence was presented to the effect that
a similar manufacturing
facility at Harris Metals
in Racine, Wisconsin, was controlled by the
chemical oxidation process
(T.
136)
and that reductions in odor were
also accomplished at two other foundries
CT.
463-471, Agency Ex.
12).
Under cross examination Mr. Sohr indicated that the Harris
Foundry installation was not functioning at that time due to a very
20—142
—9—
high rate of use of the potassium permanganate chemical
(T.307—309).
The apparent cause of the excessive use of chemical at Harris
Metals was the presence of particulates
in the air stream which
caused the excessive consumption of chemicals
CT.
491).
It is the
Agency’s contention that such high consumption would not occur
due to the existing particulate removal equipment at Wells.
In addi-
tion in September,
1974, Mr.
Sohr on behalf of the Hormel Corporation
guaranteed that a system proposed for Wells would reduce odors
to be-
low an 80 odor unit level,
phenols to
2 parts per million, aldehydes
to
2 ppm,
and amines to
2 ppm.
If the proposed installation did not
perform in accordance with the guarantee, the capital cost of the
equipment would be completely refunded
(T.
213).
The Board notes,
however, that there was no proof that an emission of 80 odor units at
the stack would eliminate that operation from being a source of com-
plaints.
Upon evaluating the testimony of the witnesses at the
hearing and considering the exhibits,
the Board finds that the chemical
oxidation method is and has been a potential method of odor control
for the Wells facility, although potentially more expensive in terms
of chemical and maintenance cost than the carbon adsorption system
and the ozone system mentioned above.
Wells contends that there is no equipment currently available
that has been proved effective with regard to the particular opera-
tion and odor at the Wells facility.
Most of the Wells cross exami-
nation of the Agency’s witnesses was with regard to their veracity
and their motives in testifying.
Notwithstanding the vigorous cross
examination by Wells counsel, the Board finds no reason to be sus-
picious of the testimony of the witnesses beyond the fact that each
was convinced that his own method of odor control was the best.
Mr.
Wells stated that none of these systems has been engineered and
proved in the field
CT. 1125).
The argument, by Wells, that no tried
and true method
is available even if taken as true does not relieve
Wells of the responsibility of going forward with its duty of
controlling the odors emitted by the facility.
The Board cannot
allow Wells to postpone their duty until someone else with the same
sort of operation develops arid proves a process for odor control.
Wells
produced no evidence that the three methods investigated would not
solve Wells odor problems, but rather the evidence was that Wells
would be forced to do some amount of developmental work with its
suppliers in order to fit a system to the operation.
In effect, Wells
complains that it cannot buy an odor controlling system from off the
shelf.
The end result of this argument is obvious.
As was stated
in A.E.
Staley Manufacturing Company
v. Environmental Protection
A9ency, PCB 71-174,
2 PCB
521
(1971), by Mr. Currie:
.It cannot be a complete defense that no one
has yet put the technology to commercial use;
if
20—143
—10—
it were we would encounter a vicious circle in
which technology was not employed because not re-
quired and not required because not employed.
(2 PCB
523)
Indeed,
in this case there is no question of commercial use, the
technologies under consideration all having been proved in prior
installations.
Rather,
it is a matter of adapting the existing
technology to precise criteria as presented by the Wells facility.
The Board finds, therefore,
that it is and has been technologically
feasible for Wells to abate their odor problem at the Skokie facility.
The use of incineration to control the odor from the Wells
facility was considered at the hearings.
The Board finds that, con-
sidering the alternate methods proposed for the odor control and the
short supply of energy with which
to incinerate the odor causing
molecules,
incineration is not a practical method for this installa-
tion.
The record indicates that the sand preparation operation is a
major contributor to the odor problem.
It would appear that the pur-
chase of prepared sand, which is available, would be an alternative
for Wells at least insofar as the odor from this particular operation
is concerned
(T.
655—894).
ODOR PANEL TEST
A great deal of evidence was produced at the hearings both
in terms of testimony and exhibits concerning odor test panels.
An odor test panel is a method of determination of the odor concen-
tration in gases discharged from industrial process operations.
The method depends upon the human olfactory system.
Samples of the
odoriferous emission are diluted with odor free air to various concen-
trations and submitted to a panel of persons who then determine whether
they can detect odor.
The method is colloquially referred to as “the
old schnozz test,” but, nevertheless,
is the subject of the American
Society for Testing Materials
(ASTM)
standard method for measurement
of odor in atmospheres, ASTM designation: D139l-57.
It appears from the record that there were as many modifications
of this ASTM standard as there were investigators.
The ASTM standard
itself calls for very stringent methods and notes a long list of
interference problems including extraneous odors and lingering tastes,
the need for a totally odor free room, observers with clean and odor
free clothing, clean and odor free equipment used in the test, control
of the smoking and chewing of tobacco or gum or eating by the ob-
servers for at least thirty minutes prior
to the determination of
the odor concentration, the physical condition of the observer, limi-
tations on the amount of time that the observer may participate in a
test, and a suitable screening test of observers to determine their
ability with respect to olfactory perception.
With all of this care-
ful consideration of variables the precision and accuracy of the ASTM
20—144
—11—
test is set at an individual reproducibility of plus or minus 50
percent,
thus indicating the need for many panel members to improve
the total reliability.
The odor panel tests as presented in the evidence of this case
were all highly modified adaptations of the ASTM method,
if they may
be considered adaptations at all.
Each party charges that the odor
panel test used by the other party was so modified as to make the
results obtained subject to a high degree of error.
The Board is in-
clined to agree with this contention of each party concerning the
reliability of the odor panel tests as performed herein and,
thus, has
ascribed relatively less weight to this evidence.
ECONOMIC REASONABLENESS
Early in the hearing, Wells effectively waived
its right for
Board consideration of the economic reasonableness of the install-
ation of odor abatement equipment.
Wells indicated that economics
would not be a consideration at the hearing and refused to provide
economic information which would allow the Board’s consideration of
economic reasonableness.
The Hearing Officer noted at the hearing
that he considered the matter waived, and the Board concurs
fT.
583).
In any event,
the one equipment bid cost entered into the record
indicated a cost of less than $200,000 which would not appear to be
particularly excessive for a corporation employing over 500 people.
WELLS POLLUTION CONTROL EFFORTS
Wells contends that its history with regard to pollution is
one of rapid compliance with Regulations.
The company points to
the installation of two electric induction furnaces installed by
July,
1965, and the final change over from cupola melting to electric
induction of melting by January 1969
CT.
164).
Wells states that
the change from cupola melting to electric induction furnaces was
not a cost saving device but was purely a pollution control measure
resulting in higher operating costs for Wells.
The Board notes
that in addition to
a more easily controlled emission problem,
the
induction furnace offers
a much more readily controlled metalurgical
process resulting in better quality iron for the castings and the
ability to produce high grade alloy
iron.
An action filed in the Circuit Court of Cook County by the
attorney General in April,
1970, People v. Wells Manufacturing
Company 70 Ch 1794, was dismissed in consideration of
a stipulation
wherein Wells discontinued the use of its cupolas and had undertaken
a study of its plant through the use of independent consultants and
in cooperation with the office of the Attorney General to determine
the need for control of any additional emission sources
(Respondent’s
Brief Exhibit C).
As a result of these investigations, apparently
conducted in 1969 and 1970, it was concluded that the odors were being
20—145
—12—
caused by organic material in particulate emissions
as opposed to
gaseous emissions
CT.
1236-1238).
Upon recommendation of their con-
sultant, Wells proceeded to engineer and order three bag house type
correctors which were installed between April and September,
1972
(T. 1092-1097).
The apparent failure of the bag house to control the
odor,
notwithstanding its excellent control of particulate matter,
precipitated Wells investigation of other methods of odor control
as.
noted above.
Wells now contends that it has since September,
1972, vigorously
pursued its investigation of the problem but cannot find technology
suitable to abate the odor problem.
Wells has experimented with other type resins for use in its
Shell process, but these apparently failed to produce acceptable
castings
fT.
1116).
In 1974 a variant of the resin then in use known
as Acme 1127 was put into the production process.
In addition, Wells
began adding a deodorizer with the new resin, whose purpose was to
mask the resin odors
CT.
897—898).
Wells contends, based upon an odor
panel
test,
that this change over to a new resin and the deodorizer
has significantly reduced the odor emissions of the Wells facility.
Citizen testimony produced subsequent
to the resin change over indi-
cates that little or no change had occurred with regard to the odor
problem.
THE WELLS FACILITY
The social and economic value of the Wells facility was con-
sidered at the hearings and the following evidence was presented.
Wells employs about 500 people at the facility with
a payroll of
some $5 to
$6 million dollars per year
(T.
1074).
Wells customers
include General Motors, Ford, Chrysler, American Motors, TRW, Vickers
Inc., Caterpillar Tractor and Cummings Engine along with other less
well known manufacturing concerns
(P.
1075).
Wells alleges that it is
the sole supplier of the parts used in automobile power steering units
and that the castings market was in a very tight capacity situation
which would create a time lag to obtain another producer if Wells
were unable to produce parts
(T.
1077).
The Board finds the unrefuted
evidence presented sufficiently establishes the social and economic
value of the Wells facility as a source of necessary industrial parts
and as an employer.
With regard to the suitability of the facility as it pertains
to its location, evidence was presented that Wells has been located
on its present site since 1947 and is located in an area presently
zoned M-3 Industrial
(T.
1003).
When the facility was first con-
structed, the area consisted of a swamp,
vacant land and some indus-
try to the north,
farm land to the east,
south and west
(T.
1126).
Niles West High School was built in the 1950’s on land purchased from
Wells Manufacturing.
Wells increased the size and capacity and pro-
duction facilities along with construction of office and laboratory
20—146
—13—
space subsequent to the construction of Niles West High School.
The limited evidence produced at the hearings indicates that
the original installation in 1947 was probably at least marginally
suitable to the area as it appeared at that time.
However,
since
1950 the area to the north and north east has become residential in
character and Niles West High School has occupied the adjacent
property on the northeast, east and southeast.
It must be presumed
that Wells was aware of the character change of the area and indeed
the property upon which Niles West High School was built was purchased
from Wells.
Faced with this change in neighborhood character and particularly
with the advent of the Niles West High School right across the Street,
it must be presumed that Wells went forward with the additions
to
their physical plant and the changes in their production methods and
capacity knowing full well that their future emissions might be
characterized as unreasonable.
The Wells facility’s priority in terms of time does not relieve
it of the responsibility not to interfere with the health, welfare
and enjoyment of property of its neighbors, The Environmental
Protection Agency
v.
Ralston Purina Company, PCB 71-88,
7 PCB 442
(1973).
In addition, as was mentioned above, the evidence indicates
that the nature of the area was established prior to much of the odor
producing processes and installations at the Wells facility.
CONSIDERATIONS
The Board finds that the Complainants have established their
burden in proving that Respondent had caused air pollution.
As
stated by Mr. Lawton in Environmental Protection Agency v. Midwest
Rubber Retaining Company, PCB 72-318,
7 PCB 202
(1973);
The statute does not require that sickness,
infirmity or
permanent injury result from odor emissions.
It is the
very activities from which these witnesses were foreclosed
that constitute these unreasonable interference with the
enjoyment of life...
The evidence in this case establishes a long term odor problem
caused by Wells Manufacturing.
The odor has significantly interfered
with and affected a great many residents, employees and students in
the area of the plant.
The Board finds that Wells Manufacturing has
violated Section 9(a) of the Environmental Protection Act by emitting
odors from its foundry in Skokie,
Illinois during 1972,
1973 and 1974.
Considering the evidence presented at the hearings and the
foregoing discussion,
the Board finds that the Agency properly re-
fused Wells an operating permit.
Since the permit was properly denied,
20—147
—14-
the Board finds Wells
in violation of Rule 103(b) (2) of Chapter
2
Part
1 of the Air Pollution Regulations and violation of Section
9(b) of the Act,
in as much as Wells operated its plant without an
operating permit.
In its determination of an appropriate penalty for the viola-
tions found, the Board has considered all the evidence presented and,
as this rather lengthy opinion illustrates, has taken into consider-
ation all the facts and circumstances bearing upon that penalty includ-
ing the considerations listed under Section 33 of the Environmental
Protection Act.
The Agency,
in its brief, indicates a potential maxi-
mum penalty of $80,000 for said violations.
The Board finds that
a
penalty of $8,500 for violation of Section 9(a)
of the Act and $500
for violation of Rule 103(b) (2) of Chapter
2 and 9(b) of the Act is
appropriate in this case.
Although it appears that Wells reacted very
slowly to their problem and generally in response to the urgings of
legal complaints,
the evidence indicates that some investigatory work
was done.
Merely investigating a problem,
however, does not fulfill
a polluter’s duty under the Act and the Regulations,
and for the Board
to condone such an approach would undermine the effectiveness of the
Act in reducing pollution in the State of Illinois.
In addition, considering the slow response in solving their odor
problem,
the Board finds
it necessary to order Wells’ compliance of
the Act by a date certain.
We will therefore order Wells to submit
a plan of compliance to the Agency within 60 days of the date of
this Order including within that plan a proposed schedule of construe-
tion.
The record indicates that an 80 percent reduction in odor is
a reasonable expectation of the methods investigated (Agency Ex.
12,
19,
20).
We shall therefore order Wells to reduce their maximum odor
emissions from the processes that are the subject of this Opinion by
70 percent before January
1,
1977
(Agency Ex.
7,
20,
21).
The
70
percent reduction in odor level shall be determined using odor panel
tests made in strict conformance with ASTM Standard D 1391-57 or,
in
the alternative, what is known as the Mills Modification to said test.
Wells
shall submit a performance bond in the amount of $50,000 to
the Agency, and shall report their progress toward compliance to the
Agency on or before July
1,
1976, October
1,
1976, and at the comple-
tion of the project.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Pollution Control Board that:
1)
Wells Manufacturing has violated Section 9(a)
of the
20—148
—15—
Environmental Protection Act by emitting odors from its
foundry in Skokie,
Illinois during 1972, 1973 and 1974.
2)
The permit appeal in PCB 74-257 be and is hereby
dismissed.
3)
Wells Manufacturing is
in violation of Rule 103(b) (2)
of Chapter
2 Part
I of the Air Pollution Regulations and in
violation of Section 9(b)
of the Act.
4)
Wells Manufacturing shall submit a plan of compliance,
including a proposed schedule of construction to the Illinois
Environmental Protection Agency, consistent with this Opinion
within 60 days of the date of this Order.
5)
a.
Wells Manufacturing shall reduce their maximum odor
emissions from the processes that are the subject of this
Opinion by
70 percent before January
1,
1977.
b.
Said
70 percent reduction in odor level
shall be determined using odor panel tests made in strict
conformance with ASTM Standard D 1391—57 or,
in the alternative,
what is known as the “Mills Modification”
to said test.
c.
Wells Manufacturing shall give reasonable notice
to the
Illinois Environmental Protection Agency of the pendency of
said tests and shall allow free access for observation thereof.
6)
Wells Manufacturing shall pay a penalty of $9,000 for
the violations
found herein.
Penalty payment by certified
check or money order payable
to the State of Illinois shall be
made within 45 days of the date of this Order to:
Fiscal Services Division
Environmental Protection Agency
2200 Churchill Road
Springfield,
Illinois
62706
7)
Wells Manufacturing shall, within 45 days of the
date of this Order, post a performance bond in the amount of
$50,000 with the Illinois Environmental Protection Agency in
a form satisfactory to the Agency to insure performance under
this Order.
8)
Wells Manufacturing shall submit reports of their progress
toward compliance with this Opinion and Order to the Agency on
20—149
—
16—
or about July
1,
1976, October 1,
1976 and at the completion
of the project.
IT IS SO ORDERED.
I, Christan L.
Moffett, Clerk of the Illinois Pollution
Control Board, here~ycertify the
bove Opinion and Order were
adopted on the
~(.
~‘
day of
,
1976
by a vote of
k...~
Illinois Pollution C
rol Board
20—150
