burn,

ILLINOIS POLLUTION CONTROL BOARD

July 31,

1975

LLOYD A. FRY ROOFING COMPANY

v.

)

PCB

 71-4

ENVIRONMENTAL PRC’FECTION AGENCY

REV.

 LOUIS HEMMERICH, ET AL

v.

)

 PCB 71-33

LLOYD A. FRY ROOFING COMPANY

BURTON

 Y. WEITZENF~LDAND PAUL LEEDS, ATTORNEYS FOR LLOYD A. FRY

ROOFING COMPANY, ?ETITIONER AND RESPONDENT;

PATRICK A.

 KEENAN AND DENNIS GROSS, FOR REV.

 LOUIS HEMMERICH,

 ET AL,

COMPLAINANT;

JOHN McCREERY AND FRED PRILLAMAN, ATTORNEYS FOR ENVIRONMENTAL

PROTECTION AGENCY;

JAMES RUBIN, ASSISTANT ATTORNEY GENERAL;

PETER C. ALEXANDER,

 2\TTORNEY FOR THE COUNTY OF COOK.

OPINION AND ORDER OF THE BOARD

 (by Mr. Durnelle):

This matter

 is before the Board on remand by the First

District Appellate Court.

 Lloyd A. Fry Roofing Company

(Fry)

 appealed the Order of the Board

 in the aboved captioned

enforcement proceeding

 (Rev.

 Louis Hemmerich,

 et al

v.

 Fry,

PCB 71-33,

 2 PCB 581

 (October 14,

 1971)).

 The First District

Appellate Court susta),ned the Board’s finding that Fry had

violated Section 9(a)

 of the Environmental Protection Act

(Act)

 by causing air pollution which “unreasonably interfered

with enjoyment of life and property’1

 (Lloyd A. Fry Roofing

 Company

v.

 Pollution Control Board et al,

 I.. App.

2d

 N.E.3d

1975)) Docket Number 56629)

 (Fry

 v. PCB et

 a?).

—

207

The Appellate

 Court reversed iTh

 ~lng

 that

Fry had violated the

 Rules and Requlatiu

 ~rn’ng

the

Control of Air Pollution

 (Air Rules).

 The court found

 that

the complaint did not

 allege violations of ~he Air Rules,

and therefore the Bo~rd

could not propery

~nd

Pry

violation of the Air

 Rules,

 The Court remandcd the case

to

the Board for a

 redetermination o~that ap

r

 ~r~tc

 portion

of the $50,000 penalty

 which should ba

 or the

violation of Section

9(a)

the

Act.

Although our

 original Opinion did nut apec~rically

find

Fry to have unreasonably

 interfered

 ‘ith

th

 ~y~ent

of

life or property of nearby

 residents,

 the Ic

r

 cound that

“sufficient,

 competent

 evidence was addaceji

~e

 1-earing

to support a findincr

 of unreasonaL~e ~c-.

~-~-

 ~rth life

and property”

 (Fry

“.

 PCB et al),

 Upon

—~

 ‘e are to

find what appropriate

 penalty should ho

r

 on Fry for

the violation of Section

 9(a)

 in accordance

it

 Thction

33(c)

 of the Act.

The record of the

 proceeding,

concluand

1971 after six hearings,

 and contain

pages, clearly

 es’ablishes that Fry has

~a

as defined in the

 dnvironmental Protecti

and has violated

 Section

9(a)

the

Ath

Many witnesses testified

 concerning the a—

by Fry’s discharge

of

 contaminanth

 J$pr

members of a communIty

 group

 known as cave

Environment

 (S.O.R.E)

 testified and :recc

1

which established

 that Fry~s

emissions

1~r

effects:

 August

12,

ipt of

906

 pollution

Scction 3(b)

2

PCB

 582).

icnce

 caused

twelve

Perources

and

ff~

davits

following

1.

 interfered with

their

 en~oyr~r

their

 property

and environment.

2.

 inability

 to conduct

ltcle

football

 in contiguous

 areas

3.

 caused their eyes to tear

au~

burn,

4.

 made

them

sick

5.

 made them cough,

6.

prelrented

their

cc nti

Park

,

and

naseball

and

sti

and

 throats to

m~rtof Summit

7.

 filled their homes

with

 odors

ard

gave

 them

 headaches

and

 nausea.

—3—

Testimony of konald Kluszewski,

 a trustee of the Village

of Summit,

 supports that of S.O.R.E members

 in that he

presented the contents and background of

 a resolution passed

by the trustees on January

18,

 1971,

 testified to numerous

citizen complaints he had received, and testified that he

was able to pinpoint the the “obnoxious” odor as emanating

from Fry and

 that.

 it interfered with his enjoyment of his

home.

 Citizen ccmplaints were the subject of testimony by

the Summit Chief of Police.

 Mr. Steven Rosenthal, Environmental

Protection Agency Engineer,

 testified that during his visits

to Fry he had observed

 a disagreeable odor or

 a piercing

stench.

Based upon this record,

 we find that Fry’s discharges

of contaminants have had an unreasonable and substantial

adverse interference with the surrounding citizen’s health,

general welfare,

 and! physical property.

As noted by

 the Court, Fry introduced evidence of the

operation of the plant.

 This evidence establishes that the

plant has a substantial social and economic value in that

it

produces asphalt roofing and allied products used in the

construction business.

Fry’s plant is located in Summit, Illinois

 in the

general area of the Chicago Metropolitan Sanitary District

sludge

 lagoons, The Trumbull Asphalt Co.,

 the Corn Products

Co.

 plant, various residences,

 the Summit Park which

is

directly north of Fry,

 and Walsh School,

 located one block

north of Fry on Archer Road

 (affidavit of Katherine

B.

Bassa).

 The record establishes that the manner in which Fry

operates its plant

 is unsuitable to the surrounding area.

The passage of the Act by the Legislature provided remedies

to prevent or

 lessen air pollution

 so that people

 living in

industrial communities must not “suffer without remedy any

uncomfortable odors which are ordinarily and necessarily

prevalent there”

 (City of Monmouth

 v. Pollution Control Board,

313 N.E.2d

 161,

163

 (May

29,

 1974)).

The counsel rep~esentingFry and the manaqer of Fry,

testified that no emission control devices were employed,

but that plans

 for installation of

 such devices were being

made

 (R.l8)

 Although questioned by Fry,

it

 is clear that

the principle source of emissions causing the air pollution

are the saturators where heated asphalt is absorbed by felt.

No air pollution devices are employed on the stacks connected

with the saturator~.

 Mr. Harvey Hoffman, former Director of

Environmental Control for the Fry plant, testified about

pollution control equipment installed at Fry’s twenty-six

18

—

209

—4—

other asphalt roofing plants located throughout the country.

The Air Pollution Engineering Manual,

 U.S.

 Department of

Public Health,

 1967 was introduced as EPA Exhibit

3.

 This

Exhibit depicts the state of the art in emission control for

asphalt saturators,

 This evidence establishes that it would

be both technically practicable and economically reasonable

for Fry to install control equipment to abate the violation

of Section

 9(a).

Evidence clearly establishes that Fry violated Section

9(a)

 of the Act on

 a continuing basis from the adoption of

the Act in

 1970 up to the date of filing of the complaint

and continuing until Fry either shut down or installed

control equipment.

 A June

20,

 1968 letter from Mr. C.W.

Klassen, Technical Secretary of the Illinois Air Pollution

Control Board,

 to Francis Nelson, Chief Engineer of Fry,

clearly establishes that based upon information supplied by Fry,

Fry had particulate emissions of

 65 lbs/hour as compared to

the then allowable rate of

 8.8 pounds per hour

 (EPA Exhibit

2).

 Applying the conservative figures of EPA Exhibit

 3, Fry

has a range of particulate emissions of between

 20 to 70

lb/hour.

 This suoports the citizen testimony which shows

that Fry has continued to violate Section

 9(a)

 from 1970 to

the date of the hearing.

Because of the great degree of unreasonable interference

with the enjoyment of life and property of the residents

surrounding Fry, we find that a substantial penalty is

warranted to compel Fry to achieve compliance.

 As noted by

the Court,

 “Mr. Fry told the group

 (members of S.O.R.E)

 that

he knew he was polluting,

 but S.O.R.E could take him to

Court to make him stop”.

 This occurred at a meeting on

December 18, l970~

 Evidently S.O.R.E listened, as they

filed

 the present complaint on February

21,

 1971,

 some

73

days later.

It

 is our determination that

 a penalty of $40,000

should be imposed against Fry for the violation of Section

9(a).

 The original opinion would have imposed a penalty of

$9,000 for the Air Rule violation and $1,000

 for the failure

to file an ACERP.

 By imposing a substantial penalty for the

violation of Section 9(a)

 of the Act, the Board

 feels that

Fry will be more likely to comply with the provisions of the

Act without S.O.R.E having to take Fry to Court again.

We

therefore,

 impose this penalty not

 as a punitive measure,

but rather as an aid to the enforcement of the Act.

—

210

—5—

It should be noted that the cease and desist provision

of the Board’s Orz~erof October 14,

 1971 was upheld by the

Court.

 We have modified the following Order based upon the

reversal of our finding of violations other than Section

9(a) and the remand for determination of the

 property penalty.

The requirement that Fry cease and desist from violating

Section 9(a)

 of the Act is consistent with our former Order

(Fry at

 2 PCB 587).

Mr. Henss dissents.

ORDER

1.

 That Lloyd A. Fry Roofing Company cease and desist

from violating Sectit.n 9(a)

 of the Environmental Protection Act

at its Summit operation.

2.

 That Fry shall pay a $40,000 penalty for causing

air pollution in violation of Section 9(a)

 of the Environmental

Protection Act as set forth in the above Opinion.

Penalty payment by certified check or money payable to

the

State of Illinois 3hall be made to:

 Fiscal Services Division,

Illinois Environmental Protection Agency,

 2200 Churchill Road,

 Springfield, Illinois

 62706.

IT IS SO ORDERED.

I, Christan L. Mcffett, Clerk of the Illinois Pollution Control

Boar~,~jierebycertify

 the above Opinion and Order were adopted on the

_______day

 of July,

 1975 by

 a vote of

Christan L.

 o fet

erk

Illinois Pollution

 trol Board

18—

211