ILLINOIS POLLUTION CONTROL BOARD
November 8,
1973
ENVIRONMENTAL
PROTECTION
AGENCY
COMPLAINANT
v.
)
PCB
73—ill
ALLIED
CHEMICAL
CORPORATION
RESPONDENT
THOMAS A.
CENGEL, ASSISTANT ATTORNEY GENERAL,
in behalf of the
ENVIRONMENTAL PROTECTION AGENCY
EDWARD G.
M1~.AG,
ATTORNEY,
in behalf of ALLIED CHEMICAL CORPORATION
OPINION
AND
ORDER OF THE BOARD
(by Mr. Marder)
This action involves a complaint filed by the Environmental
Protection Agency against Allied Chemical Corporation.
The action
alleges violations of Section 9
(A)
of the Environmental Protection
Act, by allowing the discharge of sulphur dioxide,
sulphur trioxide,
acid mist, obnoxious odor, and other contaminants
into the atmos-
phere.
Allied,
in a document entitled “Answer,” denied the above
allegations, and the matter was set for hearings.
Allied Chemical Corporation owns and operates facilities
in
Fairmont City,
St. Clair County, Illinois.
Fairmont City
is locat-
ed in a fairly industrialized area.
Industry and residential prop-
erty are in close proximity throughout the entire area.
This prop-
erty situation has existed for many years and is not a case of rec-
ent encroachment by either industry or residences.
Before getting into the matter at hand,
an answer to Respond-
ent’s motion to dismiss must be rendered.
At the close of hearings
(7,
23,
73
R.
255),
counsel
for Respondent filed
a motion for dis-
missal of the complaint on the following grounds:
1.
Evidence gathered is insufficient
to sus-
tain the complaint.
2.
The section of the complaint asking for a
penalty is unconstitutional.
3.
Allied has been deprived of its right to a
trial by jury.
10—15
—2—
The above grounds for dismissal have been raised in many oth-
er instances and have been handled at length in past proceedings:
1.
The text of this opinion will detail the
evidence gathered.
It is the sole purpose
of this opinion to decide just this quest-
ion.
If indeed that first point is valid,
the Board shall so rule.
2.
Respondent correctly alleges that the auth-
ority to impose
a monetary penalty has been
questioned in the Illinois Appellate Courts.
As of this time there are conflicting judgments
rendered by different Appellate Districts.
The matter is now pending before the Illinois
Supreme Court.
This court will render the fin-
al decision in the matter.
Until such time
the Board will continue to function under the
powers vested in it
as
provided
by
the
“i~nvir—
onmental Protection Act,” Title XII,
Section
42.
3.
The right to
a jury trial has been raised in
(PCB 71-11)
,
(71-51).
In both cases the Board
ruled
that
a
trial
by
jury
is
not
required
in
this type of action.
The Respondent is re-
ferred to PCB 70-38
EPA
vs. Modern Plating
Corp.,
for a detailed discussion of just such
a
question.
The motion for dismissal
is hereby denied.
To return to the facts alleged in the instant case,
a brief
discussion
of Respondent’s facilities
is
in order.
Allied operates
three main plants at its Fairmont City location, these being a sul-
phuric acid plant,
an aluminum sulphate plant, and a sodium alumin-
um sulphate plant.
The plant in question in the instant case is
the sulphuric acid plant.
Examination of Comp.
Exh.
#3 gives
a
good picture of Respondent’s plant flow and stack layout:
Two
converters are in series in which SO2 is
converted to
SO3 gas.
Spent acid
is also used as
a raw material.
The process
used at Allied’s plant is referred to
as the “Contact Process.”
The sulphuric acid produced is 99.3 to 99.5
sulphuric acid.
The
design capacity of the plant
is between 500 and 550 tons of acid
per day, with present production running at about 300 tons per day.
Emissions
from
the
plant
are
vented
to
the atmosphere through three
stacks.
Stack
#3
is used to vent
#3 and #4
towers,
Stack
#2 vents
tower
#2,
and
Stack
#1
vents
tower
#1
and
a
tail
tower.
The
only
emission control device is located between the tail tower and Stack
#1.
This
is a Brinks Mist Eliminator installed in 1971.
A
series
of
hearings
were
held
covering
three
days
and
some
10—16
*3
—
470 pages of testimony were gathered.
In its opening statement
(6/21/
73
R.
5)
the Agency explained its complaint to allege violations of
9
(A)
in that Allied’s emissions had
“unreasonably interfered with the enjoyment of life
and property of those neighbors surrounding the All-
ied Chemical plant, and have in part caused damage to
vegetation growing on or around the properties of the
neighbors of Allied Chemical plant.”
We then have two counts and the Board will consider them jointly.
The final order will differentiate between its findings
on both
counts.
Both counts were alleged to have occurred on or before July
1,
1970,
and continuing through the filing date of this complaint.
This case is a
9
(A)
case
for a very important reason;
the rules
regulating sulphur dioxide and sulphuric acid mist
(204
f
)
will not
become effective until December 31,
1973.
All evidence gathered and
pertaining to the “amounts” of emissions are clearly premature and
shall have no weight in the discussion of this action.
Until December
31,
1973, Respondent
is under no obligation whatsoever to comply with
rules which have
a compliance date two months hence.
Respondent does have an obligation to abide by
the
provisions
of
Section
9
(A)
of the Environmental Protection Act, and these provis-
ions are independent of the actual quantities emitted.
As stated in
PCB 71-4
(Lloyd A.
Fry Roofing Company
v. Environmental Protection
Agency),
“To ascertain whether Respondent’s operation consti-
tutes
air pollution,
it is necessary to determine
whether operation substantially interfered with the
enjoyment of
life and property of the community,”
or, more to the point in PCB 71-193,
the Board held that
“Board may find air pollution by virtue of contamin-
ants notwithstanding lack of emission standards for
particular contaminants.”
The Complainant’s case primarily then boils down to its proof of
unreasonable interference with enjoyment of life and property.
Citizen Witnesses:
Ten citizen witnesses testified at the hearings.
All of these witnesses testified that varying degrees of unpleasant
emissions emanated from Allied’s facilities.
Complaints of choking
and coughing were common
(R.
15,
32,
53,
69, 144,
196,
204,
6/21/73,
R.
6,
7/9/73).
A number of witnesses testified that at times the con-
ditions were so bad that the only option left open to them was to
leave home.
10—17
—4—
Mrs.
Sanders testified:
“In fact,
it has been so
bad sometimes that my husband and I have left the
area,
left the house and went up to Collinsville
to the parents or something.
It got so strong we
had to leave the area.”
Mr. Ayres testified: “Oc-
casionally,
a couple of times we would all just get
into the car and say,
‘Let’s go out to the park;’ we
would get in the car and go out to the park.
It has
been that bad.”
The question of alleged vegetation damage was testified to by
Mr. Essary
(R. 18,
26) when he alleged that grass would not grow
on his property.
As rebuttal the Respondent brought out that the area surrounding
Allied
is highly industrialized and that many facilities tend to con-
tribute to the poor quality of the air.
Although many witnesses ad-
mitted knowledge of other manufacturing facilities
in the area,
all
witnesses identified Allied as the source of their major complaints.
Respondent does not deny
(see Resp.
Brief
P.
13)
that at certain
times emissions from the plant have been offensive to some people,
but argues that this
is
an unusual condition.
Many witnesses, how-
ever, have complained to Respondent regarding offensive odors
(R.
55,
151—3,
199,
207 6/21/73;
R.
8 7/9/73)
,
in at least one instance
as far back
as
1960
(R.
184).
The record shows that Respondent has
been courteous in answering complaints, but that nothing was done to
alleviate the situation.
In rebuttal to Mr. Essary’s allegations of
“grass not growing,”
Resp. entered exhibits
#1,
2,
3,
4,
showing homes having what appears
to be normal healthy
grass
and trees.
Respondent also stated
(R.
212,
8/23/73) that
75 acres of land on Respondent’s property has been
yielding wheat and bean crops since 1962.
It is the Board’s opinion that the case for vegetation damage
has not been significantly proven by Complainant.
Respondent makes much of the point that citizen witnesses testi-
fied that the air quality seemed unchanged for many years.
The facts
were brought out,
under oath, by Mr. Moog
(counsel for Respondent and
lifelong resident of area),
R.
243, that the area was indeed less
polluted now than in 1940.
The basis of this
is that several facili-
ties that have contributed to air pollution have left the area,
and
that Respondent has cut its production significantly in the past
years.
Although the Board feels that Mr. Moog’s statements are true,
they do not significantly discredit the citizen witnesses.
Nor does
the fact that other facilities left the area and the fact that Allied
has curtailed production
(not for environmental reasons)
justify or
in any way exonerate Respondent from its present situation.
10—
—5—
Respondent’s
Argument:
As
mentioned
above,
Respondent
does
not
deny
that
on
occasions
problems
occur.
Mr. Hertzberger testified
(R.
210)
that
under
plant
upset
conditions,
complaints
come
in.
lie further
testified
that
atmospheric
conditions
can
yield
complaints.
The
major
arguments
made
by
Respondent
were
as
follows:
1.
Attempts
to
abate
problem:
The
Respondent
did
indeed
at
great
expense
install
a
Brinks
Mist
Eliminator
on
its
#1
stack.
This
was
before
any
regulations
were
in
effect
and
was
both
in
anticii)at:ion
of
regulations
and
“so
it
would
not
be
miserable
to
the
local
resi-
dents,”
(R.
119).
Furthermore
Respondent
claims
it
showed
good
faith
by
completely
shutting
down
its
oleum
line
for
eight
months
while
in-
stalling said Mist Eliminator.
2.
The
Respondent
has
entered
testimony
that
complaints
were
courteously
handled
and
that
attempts
to
isolate
and
remedy
the
sit-
uation
leading
up
to
the
complai~nt
were
attempted
(R.
144).
Respond-
ent
denies
that
the
frequency
of
annoyance
is
anywhere
near
the fre-
quency attested to by the ten citizen witnesses
(R.
145)
“I
have
come
out
and
talked
to
the people, stood
on
the
front
porch,
and
99.9
of
the
cases
would
have
stopped five minutes before
I got there, because when
I
got
there,
there
was
no
physical
discomfort
that
was
evident
to
me,
and
I
have
sent
the
other
people
out
in
the area,
and this has been their experience also.”
There
is
testimony
that
after
complaints
were
brought
to
the
at-
tention of the company, the problem seemed to abate itself temporar-
ily
(R.
183,
207)
.
Respondent testified to the difficulty of chang-
ing conditions in the plant to abate the problem.
However, the fact
that on some instances operational changes seemed to help would be
an indication that more could have been
done.
3.
Respondent
claims
that
they
have
indeed
investigated
the
use
of
control
equipment
on
the
remaining
towers,
and
have
found
them
to
be
uneconomical.
This
is
because
(R.
183)
of
the
design
of
the
plant;
newer
design
plants
are
more
economical
to
control.
A
figure
of
$2.5
million
was
put
forth
as
a
total
compliance
price.
The acid
plant
lost
$33,000
in
the
last
part
of
the
year
(R.
143)
,
and
a
dec-
ision
has
been
made
to
shut
down.
This
decision,
while
regrettable,
will
be
the
9~iltimatO”
pollution
control
device.
The
latest
shutdown
date
is
December
31,
1973.
It
will
be
part
of
the
I3oard’s
order
to
insure
this
shutdown
date.
4.
Much
testimony
was
elicited
as
to
Allied’s
interrelationship
with
Shell
Oil
Company.
Respondent
claims
that
while
it
operated
at
a
loss
in
1972,
received
complaints,
and
can
purchase
its
own
acid
requirements
elsewhere,
that
it
is
continuing
to
operate
just
as
a
10—19
—6—
means of supplying Shell Oil Company with acid.
It
is granted that on the surface a true hardship would befall
Shell
if
Respondent
would
shut
down.
It
is
also
true
that
Shell
is
a major corporation with many resources.
If it
was
Respondent’s
in-
tent to use Shell’s situation as a reason for continuing operations,
it was then Respondent’s obligation to prove that Shell Oil Company
had no options.
With the exception of reference to problems regard-
ing storage of spent acid, Respondent has failed to meet its obli-
gation.
Respondent has merely shown that an alternative route for
Shell may have been extra expense.
It is
also noteworthy that
a new
sulphuric acid plant is under construction on Shell’s property.
This
new facility is scheduled to start up on December 31,
1973.
This fac-
ility will not only provide Shell Oil with its requirements, but may
also supply Respondent with its requirements.
Respondent was well aware of the problem encountered by its
continuing operation.
Only the most minor attempts to abate this
problem were made, although complaints ranged back to 1960
(R.
184).
The fact that controls were not installed in the last few years be-
cause of
a planned shutdown does not lessen the fact that Allied has
caused severe discomfort to its neighbors for many years.
While it
is true that witnesses may tend to exaggerate complaints when put on
the witness stand,
the volume of testimony rendered makes it clear
that serious hardship was imposed on the residents of the area.
While it may be true that Respondent’s acid plant has lost money in
the last year,
it has most likely made profits in past years.
Some
of those profits could have been reasonably expended on abatement
measures.
It is precisely for these past years that a monetary pen-
alty will be imposed.
This Opinion constitutes the findings of fact and conclusions
of law of the Board.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1.
Allied Chemical Corporation is to cease and desist viola-
tions of Section 9
(A) of the Environmental Protection
Act at its Fairmont City sulphuric acid plant no later
than December 31,
1973.
2.
Allied Chemical Corporation has been found in violation
of Section
9
(A)
as regarding interference with the en-
joyment of life and property of its neighbors.
3.
Allied chemical Corporation has not been found to have
caused any damage to surrounding vegetation.
10
—20
—7
4.
Respondent shall pay to the State of Illinois
the sum of
$10,000 within 35 days from the date
of
this
Order.
Penalty
payment
by
certified
check or money order payable to the State of
Illinois
shall
be
made
to:
Fiscal
Services
Div-
ision, Illinois Environmental Protection Agency,
2200 Churchill Road,
Springfield, Illinois 62706.
IT
IS
SO
ORDERED.
I,
Christan
L.
Noffett,
Clerk
of
the
Illinois
Pollution
Con-
trol
Board,
certify
4hat
the
above
Opinion
and
Order
was
adopted
by
the
Board
on
the
3
~‘
day
of
P)dv4..~~~
1973,
by
a
vote
of
______to
0
.
10—
21