ILLINOIS POLLUTION CONTROL BOARD

May •23, 1974

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

)

vs.

)

PCB 73—330

OZITE CORPORATION,

Respondent.

James K. Jenks, Assistant Attorney Gene~a1 for the EPA

John R. Sloan, Attorney for Respondent

OPINION AND ORDER OF THE BOARD (by Mr. Henss)

Ozite Corporation owns and. operates a carpet manufacturing

facility located at 1755 North Butterfield Road, Libertyville,

Lake County, Illinois. Of specific interest in this proceeding

is that portion of the manufacturing process involving the

preparation, application and curing of a latex foam type material

that is applied on a continuous basis to a moving roll of carpet.

In its Amended Complaint, the Environmental Protection Agency

charges that emissions from the latex foam curing oven contain odorous

contaminants of sufficient quantity, duration and characteristics

so as to cause air pollution in violation of Section 9(a) of the

Environmental Protection Act. Ozite was charged with installation

of air pollution control devices (specifically, a carbon filtration

system and an ozonator) in December 1971 without an Agency permit

in violation of Section 9(h) of the Act and Rule 3—2.100 of the

Rules and Regulations Soverning the Control of Air Pollution and

with operating an existing omission source since July 1, 1973 without

an Agency operating oermit in violation of Section 9(b) of the Act

and Rule 1fl3(b) (2) of the Air Pollution Control Regulations.

On Sentember 6, 1973 Respondent filed a Special and Limited

ApPearance, Motion to Dismiss Count II, Demand for Jury and an

Answer to Comolaint. Our Order of September 13, 1973 denied

12

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337

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the Special and Limited Appearance, struck the Jury Demand and

ordered the Motion to Dismiss Count II taken with the case.

In the September 13, 1973 Order, the Board advised Ozite

that the issue of monetary penalty was pending before the

Illinois Supreme Court on a certificate of importance and, until

the Supreme Court decided that issue, the Board would continue

to levy monetary penalties in order to achieve uniformity in

application of the law on a statewide basis.

Respondent then filed a second Motion to Dismiss Count II

of the Complaint, which for reasons clearly explained,

was

denied

by the Board on October 4, 1973. Ozite responded on November 2,

1973 with another Special and Limited Appearance, a Motion to

Strike and a Motion to Dismiss Counts II and III of the Amended

Complaint. The Special and Limited Appearance and Motion to

Strike were denied by Board Order on November 51, 1973 citing

reasons expressed in the September 13, 1973 Order. The Motion

to Dismiss was again ordered taken with the case.

We reaffirm all previous denials today. On March 29, 1974

the Illinois Supreme Court decided in City of Waukeqan vs. The

Pollution Control Board, that this Board has authority to impose

monetary penalties. The Court said:

the Act obviously contemplates a specialized

statewide and uniform program of environmental

control and enforcement. The Legislature con-

sidered this to be more readily brought about if

the responsibility of imposing penalties was

placed on the same authority that conducted

hearings and determined violations. The Board

is to conduct hearings and, if violations are

found, appropriately it is to impose penalties.

The Legislature may confer those powers upon

an administrative agency that are reasonably

necessary to accomplish the legislative purpose

of the Agency

. . .

and we consider that it was

appropriate to give the Board the authority to

impose monetary penalties. There are adequate

standards provided and safeguards imposed on the

power given the Board to impose these penalties.

The granting of this authority does not constitute

an unconstitutional delegation of judicial power.~

12—338

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In its Motion to Dismiss Count II of the Amended Complaint,

Ozite argues that the equipment installed at the Libertyville

plant was exempt from any permit requirement since the Rules and

Regulations contained no provisions relating to control of odors.

Section 9(b) of the Illinois Environmental Protection Act

provides: “No person shall: construct, install, or operate any

equipment, facility, vehicle, vessel, or aircraft capable of

causing or contributing to air pollution or designed to prevent

air pollution, of any type designated by Board Regulations,

without a permit granted by the Agency, or in violation of any

condition imposed by such permit.” Section 3-2.110 of the Rules

and Regulations, in effect during December 1971, stated that a

permit shall be required “for installation or construction of new

equipment capable of emitting air contaminants into the atmosphere

and any new equipment intended for eliminating, reducing or con-

trolling emission of air contaminants”. Air contaminants are

defined in the Rules and Regulations as: “Particulate matter,

dust, fumes, gas, mist, smoke or vapor, or any combination thereof.”

Respondent argues that the word “odor” is conspicuously

absent from the definition of air contaminants contained in the

old Rule, and therefore odor control devices are excluded from

the permit requirement. In its Response to the Motion to Dismiss

the EPA states “an odor is merely the characterization of an

individual olfactory response to the presence in the atmosphere

of any particulate matter, dust, fumes, mist, smoke or vapor;

all of which were specifically included in the definition of air

contaminants contained in Section 1 of the Rules.”

In EPA vs. Mystic Tape, PCB 72-180, Mystic was charged with

violations similar to those alleged in this proceeding. As in

the instant case, Mystic defended on the ground that the

Regulation did not specifically require installation of odor

~hatement equipment. In Mystic, the Board ruled that Mystic was

required, pursuant to Rule 3—2.110, to secure an installation

permit prior to installation of the odor control equipment.

On appeal, the First District Appellate Court set aside inter

alia the Board’s finding on the permit issue. In doing so, the

court stated: “In view of our basic conclusions in the case,

we consider that this part of the Board~sOrder falls for lack of

any foundation as to determination of standards. We further

believe that a careful reading of Section 9(b)

,

quoted above,

discloses that it applies only to the construction, installation

or operation of any equipment of any type designated by Board

12—339

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Regulations. Since there have been no regulations promulgated by

the Board covering the type of equipment installed here, this part

of the Board’s Order must fall for that reason also.” The

Appellate Court decision is subject to review and is not yet final.

We do not believe the Legislature intended Section 9(b) to

have the meaning attadhed to it by the Court in Mystic.

The Board interprets Section 9(b) to mean that once the

Board designates a particular species of solid, liquid, gaseous

matter, odor or form of energy as a “contaminant” capable of

causing or contributing to air pollution as that term is defined

in Section 3(b), then the construction, installation or operation

of any equipment, facility, vehicle, vessel or aircraft capable

of emitting that “contaminant” into the Illinois atmosphere or

designed to prevent emission of that “contaminant”, shall not take

place without a permit granted by the Agency or in violation of

any condition imposed by such permit.

The Appellate Court interpretation would virtually destroy

the legislatively imposed duties of the Board and the Agency.

It would require the Board and the Agency to spend all their

efforts, time and financial capabilities in the impossible pursuit

of a set of regulations which would establish a particular piece

of control equipment or control system for each particular

“contaminant” for which standards have been set. The folly of this

type of bureaucratic paper shuffling would be that each new set of

regulations specifying particular equipment would be obsolete at

the moment of issuance. Pollution control is not static. It is

so dynamic that even the experts have dLfficulty in keeping abreast

of the rapidity of change.

Title 7 of the Act provides the rules by which this Board

must abide in adopting, amending or repealing substantive

regulations. Under the Appellate Court interpretation, the Board

would be required, in attempting to keep such regulations current,

to be in a continual state of regulatory hearings and to be

continually formulating inherently obsolete control equipment

specifications. Such a process would cause the collapse of the

entire Illinois environmental protection program.

We do not believe it was the intent of the Legislature to

saddle the Board with the obligation to adopt Regulations which

specify pollution control equipment. The infinite number of

12 340

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variables (i.e. type contaminant, concentration, flow rate,

temperature, emission source configuration, etc.) to be

considered in assessing every source of emission in Illinois

requires not a strict set of equipment specifications but

rather a case by case determination for effective control. This

determination is now available through the Agency’s various permit

sections with the additional safeguard of appeal to the Board

in the event a permit is denied.

The Agency has filed a Petition for Leave to Appeal the

Mystic decision. That Petition is now pending in the Illinois Supreme

Court. If the Supreme Court grants leave to Appeal, the final

decision on the Mystic issues will still be months away. Pending

a decision in Mystic, the Board will continue to operate within

the constraints of the Act as we believe the Legislature intended.

Finally, we would point out that the Appellate decision in

Mystic is technically not applicable in the instant case because a

different Appellate District is involved.

Section 3-2.110 of the Rules and Regulations when read in

conjunction with the definition of “air contaminants” provides

that a permit was required for any equipment capable of emitting

or intended for the control of particulate matter, fumes, gas,

mist, smoke or vapor. Odorous materials may be present in the

gaseous or vapor state apart from any other material or as an

adsorbed or absorbed contaminant on particulate matter or in

liquid droplets. An odor is merely a physiplogical response in

an individual’s olfactory region to a stimulus (odorant). But

more important to the permit issue, is the recognized fact that

an odorant must be in the gaseous or vapor state to be detected

by the human olfactory system. (Quantitative Odor Measurement,

John L. Mills et al., Journal of the Air Pollution Control

Association, Vol. 13, No. 10, October, 1963, p. 467) An odor

indicates the presence of a gas or vapor within the definition of

air contaminants (as that term is defined in the Rules and

Regulations) whether or not the word odor is specifically contained

therein.

For the reasons thus given the Board is of the opinion that

Ozite was required under Section 9(b) of the Act and Rule 3-2.110

of the Rules and Regulations to secure an installation permit and

accordingly, Respondent’s Motion for Dismissal of Count II is

denied.

12—341

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Ozite next moves for dismissal of the charges in Count III

of the Amended Complaint. This motion is also based on the

argument that the Board has not adopted regulations concerning

odor equipment and therefore Ozite is not required to obtain an

operating permit for odor control equipment.

In the Amended Complaint, the Agency alleges that Respondent

has violated both Section 9(b) of the Act and Rule 103(b) (2) of

the current Regulations. It has already been noted that 9(b)

requires an operating permit for operation of equipment “capable

of causing or contributing to air pollution or designed to

prevent air pollution, of any type designated by Board Regulations”.

Air pollution is defined by the Regulations in Rule 101 as:

“The presence in the atmosphere of one or more air contaminants

in sufficient quantity and of such characteristics and duration

as to be injurious to human, plant or animal life, to health or

to property, or to unreasonably interfere with the enjoyment of

life or property”. Air contaminant is defined as “any solid,

liquid or gaseous matter, any odor or any form of energy that is

capable of being released into the atmosphere from an emission

source”. (Rule 101) The Regulation designates gaseous matter

and odor as a type of air pollution. Since Respondent is

capable of emitting gaseous matter and odor in sufficient

quantities and of such characteristics as to unreasonably inter-

fere with the enjoyment of life or property we find that Section

9(b) is applicable and Ozite was required to obtain an operating

permit.

In addition, Ozite was required to obtain an operating permit

under the provisions of Rule 103(b) (2) of the Air Pollution

Control Regulations. Rule 103(b) (2) states: “No person shall

cause or allow the operation of any existing emission source or

any existing air pollution control equipment without first

obtaining an Operating Permit from the Agency no later than the

date shown in the following schedule:...”. Under Rule 101 of

the Regulations an emission source is defined as “any eouipment

or facility of a type capable of emitting specified air con-

taminants to the atmosphere”. A specified air contaminant is

“any air contaminant as to which this Chapter contains emission

standards or other specific limitations”. (Rule 101)

Those air contaminants for which the Board has “specified”

standards and limitations include smoke, particulate matter,

sulfur dioxide, sulfuric acid mist, organic materials, carbon

monoxide, nitrogen oxide, asbestos and odors from inedible

rendering processes.

of emittingWe

find

smokefrom asthe definedrecord inthattheOzite’sRegulationsequipmentand

wastherefore“capable’t

we find that Respondent was required under the provisions of

Rule 103(h) (2) to obtain an operating permit. Smoke is defined

as “small gas borne particles resulting from incomplete combustion,

consisting predominantly but not exclusively of carbon, ash and

12—342

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other combustible material, that form a visible plume in the

air”. (Rule 201)

Our finding that Respondent was capable of emitting smoke

to the atmosphere is principally based upon testimony of

Respondent’s employees. Evelyn L. Burdick, an Ozite employee,

testified that she had. noticed an ammonia type odor within the

plant “all the time” when she first began working at the plant

(R. 495). She observed a haze within the plant which caused

her eyes to water and burn and made breathing difficult (R. 503).

She indicated that other employees had similar reactions to the

haze and she felt that these reactions created a big problem

among the employees (R. 504). This ultimately led the union

to present a petition to Ozite management (R. 5l2~.

William McGowan, an Ozite employee, testified that a “sort

of smoky haze” was released into the plant up to three times per

day prior to installation of a carbon filtration control system.

McGowan stated that the haze developed whenever the oven mal-

functioned due to mechanical problems. Doors along the length

of the oven had to be opened quickly to release excess heat to

prevent the carpets from shrinking. (R. 565) He testified

that pieces of “foam or something” dropped into the oven probably

were responsible for the smoky haze that caused his eyes to water

and his nose to burn. He stated that smoke or fumes released into

the plant during an oven malfunction was the same smoke or fumes

normally exhausted~”throuqh the plant’s vents (R. 566).

It is our conclusion that a furnace which has been observed

to emit ‘smoky haze” into the interior of a plant is “capable”

of emitting this same smoky haze to the atmosphere if its

emissions are ducted to the atmosphere without control equipment.

The carbon adsorption system was equipment intended to reduce

or control the emission of a specified air contaminant (smoke)

to the atmosphere. We therefore find that Ozite was required

to obtain an operating permit under the provisions of Rule 103(b) (2)

Before reviewing substantive matters of this case relating

to alleged air pollution, it is necessary for purposes of

clarification that we comment on the agreement of counsel per-

taining to testimony of witnesses. Near the close of the record

in the first of three hearings, counsel stipulated that all

subsequent witnesses would be allowed to testify as to their

observations up to the actual date of testimony. (R. 165) At

that time the Agency had not filed its Amended Complaint and,

pursuant to the time constraints of the original Complaint, a

violation could. only be shown for the period December 8, 1971

to August 8, 1973. Subsequently, on October 4, 1973 the Agency

filed its Amended Complaint to which Ozite did not object. The

Amended Complaint alleged pollution from on or about April 1, 1971

12—343

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continuing every day of operation to the filing of the Amended

Complaint.

In order to prepare an orderly and understandable opinion

pursuant to these legal maneuvers, the Board will accept the

testimony on these terms:

1. All testimony taken to page 165 of the record

on September 28, 1973 relati.ng to violations

of Section 9(a) of the Act will be applicable

only to violations which allegedly occurred

between December 8, 1971 and August 8, 1973;

2. After page 165 of the September 28, 1973

record, testimony will be considered for the

period of December 8, 1971 to September 28, 1973~

3. The testimony taken on October 26, 1973 and

November 3, 1973 will be considered as applicable

to the period. April 1, 1971 to October 4, 1973,

the last date of violation alleged by the Agency.

Testimony covering the period October 4, 1973

to November 3, 1973 will not be considered as

proof of a violation since none was alleged for

that period.

Ozite’s manufacturing plant is located at the extreme

northwest corner of the Village of Libertyville. It is bounded

on the east by Butterfield Road, on the south by railroad tracks,

on the west by open fields and on the north by Peterson Road.

Three residences are located along a section of Butterfield

Road east of the plant.

Ozite’s chief engineer, William H. Kiley testified that

operations at the manufacturing plant commenced in late 1969

or early 1970 (R. 202). The foam oven was not installed until

April 1971 (R. 207). The foam compound, consisting of styrene—

butadiene rubber latex, frothing soaps, and oil antioxidant,

a powder antioxidant, alkalis, dispersents, mineral fillers,

wax, zinc oxide, sulfur, zinc mercatobenzo—thiozole, zinc

diethyl-dithio-carbonate and carbon black preground color (R. 211-

212), is mixed in two tanks on the foam oven platform. After

mixing, the liquid foam mixture is pumped to an oscillating

hose or tube that spreads the liquid foam on the back of the

carpet to a depth controlled by a “doctor bar”. The coated

carpet then enters the curing oven which “vulcanizes” the foam

at a temperature of about 220°F.

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Kiley testified that it was possible for odors to be

emitted during the preparation of the latex foam mixture (R. 219)

and any odors thus emitted would be exhausted to the atmosphere

through six roof fans (R. 200).

After commencing the foam oven operation and until the

installation of a carbon adsorption system in December 1971,

emissions from the oven were vented through five “penthouses”,

each capable of discharging 18,000 cfm of air (R. 208). The

“penthouses” have since been removed and emissions from the

oven are exhausted through a duct system to the carbon filtration

system (R. 227)

Kiley testified that emissions from the foam oven consisted

of 480 lbs./hr. of “moisture vapor” (R. 209, 229). When

questioned about the need for control equipment if the plant

emissions consisted solely of water vapor, Kiley testified that

Ozite had installed the control equipment because of a June 1971

complaint from the Village of Libertyville. He later confirmed

that the June 1971 complaint had actually been an order from

Libertyville to “cease and desist emitting odors” (R. 252).

Upon receiving the Village of Libertyville Complaint and

Order, Kiley testified that Ozite began an investigation to

determine if there were any odors, and “we set in motion a program

to investigate various sources, to see if the problem could be

corrected” (R. 230). Sassafras and wintergreen were used in an

effort to mask the odor hut continued complaints from “the towns-

people and the Village Board” led to the discontinuance of the

chemical masking program. Ozite also chang~edthe composition of

the foam in order to reduce the number of compounds required but

Kiley admitted the complaints continued.

After work by several odor control firms failed to indicate

any acceptable control scheme, Ozite employed Universal Oil

Products in October 1971 to determine the nature of the odor

problem and to make recommendations for a control system. Kiley

testified that the UOP report indicated there were chemicals in

the emissions but in concentrations too small to permit identification

(R. 238). UOP concluded that the plant emissions contained

combustible materials for which they recommended incineration

(R. 240)

Apparently still not satisfied, Ozite terminated its

dealings with UOP and brought in a plant engineer from Ozite’s

St. John, Quebec plant who, according to Kiley, was a ventilation

expert (R. 240). After the Canadian engineer determined the odor

problem could be solved by carbon filtration, a Montreal firm was

employed to design and install the carbon filtration system. This

12—345

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system was installed in December 1971 at a cost of $140,000

CR. 242). Kiley admitted that Ozite did not obtain an

installation permit from the Agency prior to installing the

carbon filtration system (R. 244).

The carbon filtration system was modified after several

months of operation by changing the type carbon used and in-

stalling additional capacity in the system. Kiley testified

that the additional filtration capacity was installed because

Ozite felt that the original installation was “under designed”

(R. 247). According to Kiley, an ozonator was installed in

June 1973 without Agency permit to “give ourselves a little

insurance

. . .

when the charcoal was getting to a low

efficiency

. .. .

the ozonator would pick up any residue, if

there were a~iy” (R. 253). Although the ozonator is still in

place, it is not being used because of mechanical problems (R. 254).

The record reviewed thus far shows that: 1) emissions

from the Ozite plant caused the Village of Libertyville to issue

an order requiring Ozite to “cease and desist emitting odors”;

2) Ozite employees were exposed to an ammonia type odor and a

smoky haze each time the foam oven malfunctioned and the doors

were opened; 3) union employees presented Ozite management with

a petition relating to conditions inside the plant created by

emissions from the foam oven; 4) the smoky ammonia smelling

haze within the plant during an oven malfunction was the same

material being emitted through the five “penthouses”; 5) smoky

ammonia smelling emissions continued until about December 1971

at which time Ozite installed a carbon filtration system without

Agency permit; and 6) Ozite enlarged the capacity of the carbon

filtration system and installed an ozonator in June 1973 without

an Agency permit.

The record contains substantial testimony of the impact of

this odor in the community.

One of the residents, Gordon C. Thomas, testified that he

has resided at his present location 1,000 ft. east of the plant

since 1957. Thomas first experienced “a strong odor of sulfur”

near his home on April 24, 1971 (R. 13, 54). He described the

odor as “obnoxious” and one that caused a “biting sensation on

the tip of my tongue and in my nostrils” (R. 16).

Thomas said the odor varied in strength but was present

every day when the wind was from the west CR. 21), From April

1971 to December 1971 Thomas experienced the odor on his property

about three times per week

CR.

67). On May

3,

1971 he was told

that the plant chemist “wished to reassure me that the odor was

not——was a harmless ammonia-type odor” CR. 56)

.

Thomas testified

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that a picnic in the summer of 1971 had to be relocated from

his property to a park in town when family and guests complained

about the obnoxious odor CR. 75). Odors during this period had

a “nauseating” effect on Thomas twice (R. 60).

In an effort to keep the odor from his home, Thomas placed

storm windows on the west and north sides of his house and on

occasion placed a shag carpet against the front door CR. 62, 63).

From December 1971 to August 1972, Thomas estimated he

experienced the odor on his property about three times per week

CR. 68) and from August 1972 to March 1973, twice a week CR. 44).

During this time Thomas was awakened by the odors at night on

two occasions CR. 44). He was forced to take his family and

leave his property four times “because of the strength of the

odor and the repulsiveness of the whole situation” CR. 45).

Thomas stated that he experienced the odor on “numerous” occasions

during May 1973, and about 20 times from June 1973 to August 1973,

during which time the odor duration was about 1 hour CR. 38).

Thomas testified that he had found the odor “very bothersome”

during mid-August 1973 while trying to paint the outside of his

house CR. 32). He added that he went into his house to avoid

the odor hut soon noticed the odor was coming underneath his

door CR. 36). Thomas also testified that the odor caused him

to suffer “mental anguish” CR. 26) and that he had never witnessed

the odor that it did not burn his nostrils CR. 34).

The Hearing Officer, who observed the witnesses and commented

on their credibility, reported to us that Thomas appeared more

influenced by his interest in the case than by his actual memory

of and recitation of facts. We give but little weight to Mr.

Thomas’ testimony.

Mabel R. Gunter, a 76 year old woman, has resided at the

same location on Butterfield Road for 54 years. She testified

that she has experienced odors from the Ozite plant “practically

ever since they put that factory in there” CR. 126). She

described the odor as “really gassey” and stated that it causes

her to “want to get away from It

. . .

you don’t want to smell it

anymore

- . .

you just have to go in the house” CR. 129)

.

The

odor keeps her “bottled in the house” (R. 128) and forces her to

stop working in her flower garden CR. 133). She testified that

she experienced the odor at least once per day during August and

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September, 1973. According to Mrs. Gunter, her relatives will

no longer visit her because of the odor CR. 140).

Mrs. Gunter complained to Ozite officials in 1972 but

noticed no improvement in the odor problem whatsoever CR. 137)

Mrs. Gunter admitted that she had picketed the Ozite facility since

1972 carrying a sign which read: “Pollution, Ozite real bad.

Help, help” CR. 141). She pickets the facility alone and nearly

every time she feels “halfway decent” CR. 154). She testified

that she intentionally turns the sign so that the words are

visible only to Ozite employees and not to anyone passing the

facility in anautomobile CR. 155). Mrs. Gunter was a credible

witness.

Lonnie D. Smith, a Lihertyville fireman, testified that he

first experienced an odor from the Ozite plant in April 1971. In

the summer of 1971 Smith and Gordon thomas weat

to the plant where

they talked to ~‘Mr.

Andrasik” about the odor. S~rith testified

that

Andrasik took the ~ w~ninto the plant and showed them the

~quipraent

that was “the primary cau~:e of any

odor”.

Andrasik

reportedly told the two men of Ozite’s plan to install odor control

equipment (R. 182). Approximately two months later Andrasik and

an Ozite engineer went to Smith’s residence to again discuss the

odor problem. Smith testified that both Ozite representatives

admitted detecting a “foreign odor” in front of the Gunter

residence. CR. 184). Smith described the odor as a “strong,

acidy smelling, nauseating type” odor that burned his nostrils

CR. 160). The odor .causes severe headaches for Smith, one of which

he described as severe enough to force him to leave his property

in 1971 (R. 177). Smith testified that~the odor forced him from

his property four or five times in 1971, twice in 1972 and two or

three times in 1973 CR. 174, 177). He detected odors from the

plant on about five occasions in August 1973 CR. 169) and four

times in September 1973. Smith has never noticed any other odors

on his property (R. 190) and has not noticed any decrease in odor

intensity since December 1971 CR. 189)

Phyllis Thomas, wife of Gordon Thomas, testified from her

own records that recent experiences of odor emission from the

Ozite plant had occurred on September 18, 21, 22, 26 and on

October 1, 4, 5, 9, 16, 19, 25, 1973. She stated that the odor

had been “strong, pungent, disagreeable” during the week of

October 15 through 19, 1973. A police officer was called to the

Thomas residence on the evening of October 16, 1973 when an odor

that started at 11:00 A.M. increased in intensity through the

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afternoon.

Mrs. Thomas testified that the odor ceased about

1 hour after the

officer left their property.

Mrs. Thomas, who also first experienced the odor in April

1971 testified she had experienced the odor two or three times a week

from April 1971 through the year 1972 CR. 378, 379).

She stated

that the odor causes her

to feel a tightening in her chest. CR. 380)

She testified that the odor forced her family to leave their home

CR. 383), prevented her from performing outside activities CR. 380,

381)

,

forced her to retreat to the confines of her home ten times

in 1972 CR. 381), and has forced her family and guests inside the

home on one occasion in 1972 CR. 378). She stated that there had

only been two or three weeks of respite from the odors since 1971

CR. 373) and that she had detected no change in odor intensity

subsequent to the December 1971 installation of odor control

equipment (R. 385).

Allen H. Schertz, administrator for the Village of Libertyville

testified that he initially contacted the Ozite plant in 1971 when

he began receiving odor complaints from people living near the

plant. Schertz testified that he detected odor from the plant both

before CR. 301) and after installation of the odor control equipment,

with the most recent detection being in late spring or early summer

of 1973 CR. 302). He felt that the cease and desist order issued

by the Village played an important role in the subsequent odor

control system installation CR.

.

303). On the other hand, he

stated that he did not believe the control system had been effective

in eliminating the odor since he could still smell the odor

CR. 304) and the frequency of odor complaints had not diminished

CR. 314). Schertz testified the odor he detected was not the same

as the chemical added to natural gas (R. 318)

Stanley Ryba, a Libertyville police officer, testified that

he was the officer assigned to investigate the Thomas odor complaint

on October 16, 1973. He admitted detecting an odor on that

date that was “irritable and unpleasant” but which “did not hurt

in any way” CR. 329). Ryba testified that the wind was from the

west on that date and that there is nothing immediately west of the

Ozite plant “except for fields and grass and a nursery and things”

which could have caused the odor CR. 330). After experiencing the

odor on the Thomas property he drove “down a driveway to get down

into Ozite” where he could not detect the odor CR. 336). He

attributed this phenonema to the location of the plant which “sits

down off the road” CR. 336)

Ryba admitted that he never detected the odor from Ozite prior

to October 16, 1973 although he drove by the plant “a couple dozen

12— 34$

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l4-

times a day” when he was responsible for patrolling the west

side of Libertyville. On at least three occasions he visited the

plant in response to emergencies without detecting any odor and he

also failed to detect an odor while “running radar” near the

plant. Ryba, started as a patrolman on April 23, 1973.

Kathleen Decker has hoarded her horse at the Thomas Boarding

Stables for the last three years and has ridden the horse from

three to five times per week throughout the period. She rides

her horse in the general area around the Ozite plant. She testified

that she had experienced odor on the average of 70 to 80 of the

times she had ridden in 1972 and about 70 of the time in 1973.

She described the odor as “what I would imagine sulfur dioxide

would smell like” CR. 464). The odor irritates her nose and

causes it to run. While riding she can smell the odor all around

the plant for a distance of about 1 mile depending on which direction

the wind is blowing (R. 475). She smelled the odor on October 16,

1973 at about 6:30 P.M. On that date she found the odor “Obnoxious”

and the worst she has smelled in the last three to four months

(R. 465)

Steven J. Rosenthal, an Agency engineer testified

that he was

familiar with the control equipment at the Ozite plant. He based

this familiarity on general knowledge of carbon absorption equipment,

a review of the installation permit application, a review of

Answers to Interrogatories and attendance at a conference with

Ozite personnel. Rosenthal stated that he had

visited the plant

in

July 1971 (prior to the installation of control equipment). He

testified that he had knowledge of the frequency of complaints

about the plant and general knowledge o~ “what is

occurring

with this particular situation” CR. 409). On this foundation,

Rosenthal testified that the Ozite carbon absorption system

was not effective CR. 412).

Rosenthal stated that Ozite could have installed an afterburner

to incinerate fumes at the plant. He testified that the afterburner

“is perhaps the most common and successfully used type of odor

control device” and would have cost Ozite about $60,000 to install

(R. 416, 417)

The Rosenthal reference to having reviewed an installation

permit application supports the testimony of William Kiley that

Ozite had applied for an installation permit although apparently

no permit was issued. Neither party in this case saw fit to intro-

duce a copy of the permit application.

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-15-

To rebut the testimony of Agency witnesses, Ozite presented

testimony of five employees and an engineer who conducted an odor

survey. Ozite also claimed that there were other sources of odor

in the area. One of the employees, Lewis D. Martino, Ozite’s

Director of Technical Skrvice, testified that he had traced a

“most pungent odor” to a fuel gas storage depot operated by the

North Shore Gas Company at the intersection of Peterson Road

and Route 45. At this location which is about 1 mile northwest

of the Ozite plant, Martino testified that a mercaptan, probably

ethyl mercaptan, was added to the gas to identify the material.

He stated that the mercaptan additive carries for long distances

C ~.

605) and that he had detected the odor on Ozite property as

recently as “several weeks ago” CR. 601)

.

Martino indicated

that the mercaptan additive had an odor of concentrated garlic

and dead skunk which causes him to become nauseated when he

gets close to the source CR. 650). He stated that he had never

made any complaints to the gas company about the odor CR. 648).

Martino has also detected a “very pungent odor” at the Ozite

plant every two or three months which he attributed to a

hatchery and chicken farm located 3.7 miles south of the Ozite

plant CR. 608—610)

It was Martino who initiated the Ozite investigation for sources

of odor within the plant when complaints from neighbors first

started. He testified it was soon learned that it was impossible,

with present technicues, to determine the exact composition of

the plant emissions. Martino consulted with the chemist who

analyzed the emissions and concluded that some sulfur compounds

were in the exhaust gasses, probably disulfides CR. 593). He

described the material as having a “bad egg’~odor which, being

very volatile, would dissipate so quickly that it would not be

noticed at any ~‘reasonable”distance CR. 594)

In response to complaint from Gordon Thomas, Martino

visited the Thomas property before and after installation of

the odor control equipment. He testified that there had been

occasions when he detected the odor and some when he had not

CR. 624). On one visit in the summer of 1973 he detected what

he thought to be “a very slight emanation from our plant” CR. 626),

which he described as a “disulfide odor”. The source of the

disulfide odor, according to Martino, was the foam oven CR. 639).

Martino testified that he had worked with rubber vulcanization

for over 20 years without experiencing any physical sensations

from disulfide emissions, even at high concentrations CR. 643).

The Hearing Officer gave an adverse report on Martino’s credi-

bility as he had on the credibility of Mr. Thomas.

12—351

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—16—

Other Ozite employees testified that odors from the foam

oven were detectable near the plant or in the parking lot, prior

to installation of the control equipment. Evelyn Burdick

noticed an “ammonia type” odor on the parking lot almost every

day (R. 498). The odorous materials caused her eyes to burn

and made breathing difficult for her. Jerry Pillard detected a

strong odor like “ammonia household cleaner” on the parking lot

before the control equipment was installed.

While the employees

can still detect occasional odors near the plant, they agreed

that the odor problem was significantly

reduced in the parking

lot after installation of the

control equipment.

Ozite’s final witness, Dr. William R. Staats, consulting

engineer for Polytechnic Inc.,

testified that he had conducted

an odor panel survey at the plant on September 25, 1973.

Prior

to the panel survey, Dr. Staats

visited the plant in order to

“make

a preliminary judgment as to the odor level”. Using a

“small dilution device” Dr. Staats

determined the odor level in

the exhaust stack to be less than 80 odor units per cubic foot

CR. 660)

For the odor panel, Dr. Staats

engaged the services of nine

women selected for him by a market

research agency. None had

any “acquaintance”

with Ozite (R. 662) and all were non—smokers

CR. 667). He

requested all applicants to avoid perfume or chewing

gum on the day of the test and he

checked to insure that none had

colds or other

respiratory ailments.

After being informed by an

Ozite

employee that the material

being processed would be representative of the type material

normally releasing the most odor, Dr. Staats withdrew samples

from the exhaust stack. He admitted de~ectingan “acrid, sulfur

odor” coming from the stack while collecting his samples (R. 680).

He diluted the samples to various concentrations and then tested

each panel member’s response to the samples. The odor panel

survey was conducted in a “training room”

in the Ozite adminis-

tration building. All members of the panel were in the same area

where they could observe and hear each other’s reactions and

comments CR. 689).

Plotting individual responses, Dr.

Staats concluded that the

plant was emitting 28 odor units per cubic foot CR. 674).

Based

on this conclusion, Dr. Staats testified

that the odor

exhausted

from the Ozite plant’s foam oven would not be

detectable beyond

the Ozite

plant boundary CR. 675).

From the testimony,

evidence and arguments comprising the

proceedings in this case the Board must now determine three

essential facts: 1) are contaminants being released from the

Ozite plant; 2) are any contaminants thus released, either alone

or in combination with contaminants from other sources, “in

12—352

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—17—

sufficient

quantity and of such characteristics

and duration as

to

be injurious

to human, plant or animal life, to health or to

property or to unreasonably interfere with the enjoyment of life

or property”; and 3) if such proof is shown, has Ozite shown that

compliance would impose an arbitrary

or unreasonable hardship.

Without a doubt the record clearly shows that odorous

emissions from the Ozite

plant commenced with the installation

and operation of the foam oven.

Emissions from the foam oven

were vented to the atmosphere through five “penthouses”.

At times,

the emissions became so concentrated

near the oven that a smoky

haze was visible inside the plant.

The odorous haze caused

employees’ eyes to water and burn and made breathing difficult.

This was the material being emitted to the atmosphere.

Complaints, primarily from three of Ozite’s nearest neighbors,

also resulted in

a cease and

desist order being served on Ozite

by the Village

of

Libertyville.

These neighbors presented testi-

mony that the odor had caused their eyes and nostrils to burn,

had caused severe headaches, had caused some breathing difficulties,

and had forced them from their homes and property on several

occasions. They unanimously testified that the odor was coming

from the Ozite plant and that installation of control equipment

at the plant had not changed the frequency or intensity of the

odor. They have had to cancel outdoor events or move them to

another location. One witness, a 76 year old woman, testified

that she no longer has visitors at her home because of the odor

problem. This same witness testified she now pickets the plant

as often as she is able.

In response to the odor complaints Ozit~e installed a carbon

adsorption system in December 1971. The capacity was subsequently

doubled andthen an ozonator was installed in June 1973 in order

to provide additional “insurance”.

The odor control equipment apparently stemmed employee

complaints about odors inside the plant, but Ozite’s neighbors

have continued to complain.

Both employees and neighbors testified that the odor is stilL

detectable. The difference in their testimony is that none of the

employees except Lewis Martino can now detect the odor beyond plant

boundaries. The employees detect the odor on the “parking lot”,

“near the guard shack” or “near the general perimeter of the

building’.

Of particular importance in this proceeding was the testimony

of Dr. William Staats that Ozite was emitting 28 odor units per

cubic foot of exhausted air, a concentration which in his opinion

would not be detectable beyond the plant boundaries. The Agency

12—353

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—18—

appeared concerned over the fact that all members of the odor

panel were seated in the same room which allowed each member

to observe the reaction of other members and overhear their

responses to Dr. Staats. Dr. Staats testimony that he pre-

sented each panel member “with a series of samples of various

dilutions, in random order” and his request to the panel

members that they not discuss their test experience with one

another until all tests were completed, shows that he considered

this possibility and attempted to reduce such influence as much

as possible. The odor survey room shown in Figure 81, Air

Pollution Engineering Manual, AP-40, 2nd Edition, page 932,

depicts several Ohairs in the “evaluation area” which would

indicate that panel members can be in the same room during the

test.

Dr. Staats states that he conducted the odor survey using

a technique described in an article by John L. Mills, et al.,

“Quantitative Odor Measurement”, Journal of the Air Pollution

Control Association, 13 467-75 (1963) October. He very carefully

described the exact procedure used for collecting the samples,

diluting the samples, and the method of presentation of the

samples to panel members. However, he did not say whether or

not the evaluation room was air conditioned and odor free, and

whether or not the room was devoid of drapes, rugs or other

odor adsorptive furnishing. Mills, et al., describes these

requirements as essential to any odor survey. However, these

apparent discrepancies are not sufficient to discredit the

entire Staats report.

We are not impressed by evidence showing the existance of

two other possible sources of odor in the area, a natural gas

storage area about I mile northwest of the plant and a chicken

hatchery about 3.7 miles to the south., Allen Schertz, Adminis-

trator for the Village of Libertyville, stated that the odor he

detected on the highway adjacent to the plant was not the same

odor as the “stuff they put in natural gas” CR. 318). The entire

record convinces us that the odors complained of did originate

at the Ozite plant.

The record proves that Ozite has caused air pollution in

violation of Section 9(a) of the Act and that such violations

have been continuous from April 1971 through at least the fall

of 1973. Installation of odor control equipment, even without

proper permits and in spite of evidence showing that odors con-

tinued to be emitted, will be considered to be a mitigating

factor in Ozite’s favor.

The fact that Ozite employees cannot smell the odor beyond

the plant boundary and the fact that the odor panel showed the

emission of only 28 odor units per cubic foot of air in the

12—354

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—1 9’

exhaust gasses cannot rebut other testimony of the impact of

these odors in the neighborhood. The odor permeates the area,

causing “severe headaches and burning eyes and nostrils”.

Friends shy away from. visits because of the odor and outdoor

activities suffer or ‘are cancelled whenever a northwest wind

carries the odor to their property. We find that Ozite’s

neighbors are victims of air pollution caused by emissions

from the foam oven in the Ozite plant.

Having determined that Ozite is causing air pollution,

we

must refer to the record to determine

if adequate control

measures can be taken,

if

such measures would impose an arbi-

trary and unreasonable hardship on Ozite and exactly what Ozite

plans to do about abating the odors.

The carbon adsorption system has not abated the odor problem.

The ozonator is not operable an’d we are not told if Ozite plans

to make the device operable again. A four square foot vent

remains continuously open in the roof over the foam oven and

is a possible source of air pollution that has apparently not

been tested CR. 576). In spite of continuing complaints from

their neighbors Ozite does not contemplate any additional

measures to eliminate the odor problem CR. 272).

Testimony and evidence relating to the composition of the

exhaust gasses is virtually nonexistant in the record except for

some occasional references to a “disulfide” material, One

consulting firm recommended incineration as a means of odor

control. Agency Engineer Rosenthal testified that incineration

is probably the most common and. successfully used method of odor

control. He added that Ozite could have installed an incinerator

for about $60,000 as opposed to the $l40,0b0 expended for the

carbon adsorption system.

The Board acknowledges the successful employment of incin-

eration for odor control in many instances. However, further

evaluation of the entire control system is needed before deciding

on a final odor control program. This evaluation should especially

note that a sulfur compound may’ be one of the main components in

the exhaust gasses. Care should be taken that oxidation of the

sulfur compounds through incineration does not produce emissions

as odorous and possibly more injurious than those now being

discharged.

The record shows that Ozite has experienced difficulties

with the engineering aspects of its carbon systems particularly in

equipment sizing. It is possible that the present carbon system

can be more effective if modified. If that possibility is

explored and if the ozonator is repaired or replaced and if the

open vent over the foam oven is permanently sealed, Ozite might

be able to abate its odor problem.

12 —355

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—20—

We will require Ozite to cause a thorough evaluation of

its present system to be performed by experts.

Based on this

evaluation, Ozite shall submit a proposed compliance

plan to

the Agency. Ozite shall also be required to

permanently seal

the open vent over the foam oven or show cause why the vent

should not be sealed. We shall require that

such compliance

plan be designed to abate the odor problem within six months.

In summary, it is the finding of the’ Pollution Control

Board that Ozite is guilty of all charges specified in the

Amended Complaint. After thoroughly considering the mitigating

factors in Ozite’s favor, we believe that a monetary penalty

consisting of a $2,000 fine for the air pollution violation

and a $1,000 fine for the permit violations is appropriate.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

It is the Order of the Pollution Control Board that:

1. Ozite Corporation shall pay to the State of

Illinois by June 24, 1974 the sum of $3,000

as a penalty for the violations found in this

proceeding. Penalty payment by certified check

or money order payable to the State of Illinois

shall be made to: Fiscal Services Division,

Illinois EPA, 2200 Churchill Road, Springfield,

Illinois 62706.

2, Respondent shall apply for and obtain all

necessary operating permits for its Libertyville

plant.

3. Respondent shall cause a thorough evaluation of

its present odor control system to be performed

within 30 days of the date of this Order. Such

evaluation shall include but is not limited to

a thorough investigation of the present carbon

adsorption system by an expert(s) in the field

of odor control, consideration of the

possible replacement of the carbon system with

a more effective control system, and a determination

of the need for repair or replacement of the ozonator.

Respondent shall provide the Environmental Protection

Agency with a copy of the evaluation report

within

45 days from the date of this Order.

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—21—

4, Respondent shall within 30 days close and

permanently seal the atmospheric vent over

the foam oven or show the Board reasonable

cause why the vent should not be sealed.

If the vent must remain open, Respondent shall

insure that all contaminants normally exhausted

through that vent are properly treated so as

not to cause odorous emissions.

5. Based on the evaluation report required in

Part 3 above, Respondent shall submit a

compliance plan to the Agency within 60 days of

the date of this Order.

Such compliance plan

shall show that Respondent will achieve

compliance with Section 9(a) within six months

of the date of this Order.

6. Respondent shall

submit bi-monthly progress

reports to

the Environmental

Protection Agency.

Said reports shall commence on

July 1, 1974 and

shall provide details of

Respondent’s progress

toward completion of the evaluation report and

compliance plan. Each report shall also contain

a list of complaints received relative to odorous

emissions, probable cause for the odor or

complaint and measures taken in response to each

complaint.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control

Board, her~by certify the

above Opinion and Order wa~adopted

this

~3t~

day of

________,

1974 by a vote of ~ toO

c~L~

12

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351