ILLINOIS POLLUTION CONTROL BOARD

December 13, 1973

ENVIRONMENTAL PROTECTION AGENCY

COMPLAINANT       

)

v.

)

PCB 73—182

O’KEEFE BROS. COAL COMPANY   

)

RESPONDENT       

)

FREDRIC J. ENTIN, ASSISTANT ATTORNEY GENERAL, in behalf of the

ENVIRONMENTAL PROTECTION AGENCY

CHARLES J. O’CONNOR, ATTORNEY, ARVEY, HODES & MANTYNBAND, in behalf

of O’KEEFE BROS. COAL COMPANY

OPINION AND ORDER OF 

THE

BOARD (by Mr. Marder)

This

action involves an enforcement case brought against

O’Keefe Bros. Coal Company by the Environmental Protection Agency.

Respondent is alleged to have operated a coal yard in violation of

Section 9 (A) of the Environmental Protection Act and in violation

of Rule 203 (f) (1) of the Illinois Pollution Control Board Rules

and Regulations, Chapter 2, Part II. Complaint was filed May 1,

1973.

O’Keefe Bros. Coal Company is a Delaware corporation, which

owns and operates a coal storage yard located at 32nd Place and Ben-

son Street in Chicago. The main operations at the yard consist of

unloading coal from barges and loading coal into delivery trucks for

distribution to area users. The major pieces of equipment used at

the

yard are a P & H crane with an Owens coal bucket; two front end

loaders, coal delivery trucks, and portable oil and water spraying

devices.

Because of the nature of the complaints, it is very necessary

to describe the area in 

which O’Keefe

is located. The area surround-

ing O’Keefe is zoned M-2—3, General Manufacturing District (Resp. Ex-

hibit 3) 

Respondent’s exhibit

#1 gives an excellent portrayal of

the alignment of industries and residences

in

the area,

O’Keefe is

bordered on the north by a ready—mix cement plant, south by an un-

paved truck lot and unpaved truck depot, on the west by the Chicago

River. Across the Chicago River is another truck depot. The east

side of O’.Keefe is a serai-res:Ldential area.

Many of the roads

and

alleys are unpaved. There are a few lots with debris piled in

them~

There are various 

other industrial nlants in

the

area, notably the

—2—

city incinerator (10 blocks south) and the Fisk Edison plant (10

blocks north). Both the Dan Ryan and the Stevenson Expressway are

in the area. The above description is given to point out that there

are many potential emission sources in the area which add an addition-

al element to the burden of proof on the Agency.

As mentioned above two separate counts constitute this complaint

(9A and 203 f  l  

) .

Because of the nature of the complaints, and

more importantly the different methods of 

proof required, the com-

plaints will be separated.

The complaint filed May 1, 1973, was followed by a motion to dis-

miss by Respondent. The motion to dismiss was denied by the Board,

and Respondent then filed an answer to complaint. The matter went

to hearings which were held on July 16, 25, 26, 30 and August 1st.

The matter was hotly disputed and much valuable testimony was elic-

ited on both sides. The volume of testimony generated has greatly

helped the Board in rendering its decision.

Complaint Alleging Violation of 203 (f) (1)

Rule 203 (f) (1) deals with dust emanating from material handling

or storage facilities. Rule 203 (f) (3) 

however, qualifies 203

(f) (1) by negating it if a wind speed of 25 mph is present. The rat-

ionale for these two rules was obvious: to maintain proper practice

in material handling and stockpiling regulations, while recognizing

the fact that the problem of suppressing dust from stockpiles is un-

ique. When the Board adopted this regulation, it specifically drew

reference to the testimony elicited on this point. The Board felt

that Mr. Roberts1 testimony (EPA) that at 25 mph wind limit fugiti~ic

particles would be regulated 99 of the time of the year was valid.

(Emission Standards #R—71—23 P. 25.)

The Complainant then finds himself in the position of having to

prove not only that fugitive particles were emitted beyond Respond-

ent’s property line, but also that at such a time the wind speed was

not in excess of 25 mph. The record is filled with references (R. 21,

83) asking for specific dates of violations by Respondent from Com-

plainant. This information was not forthcoming. References were made

by citizen witnesses CR. 33, 79, 196, 233) to dust being in the air

every day. Because of the nature of the highly industrialized area

and the high potential for dust emanating from many sources (as will

be covered later) 

the Board cannot pretend to presume that Respond-

ent would be required to defend “Every day.”

Agency investigator Dennis Belsky conducted high volume sampler

tests around Respondent’s property. Although this data was tied to

specific dates, Mr. Beisky could not tie these dates to actual visual

emissions as required by 203 (f) (1). The entire question of high-

volume samples as a defense becomes moot because of a stipulation

that these samples would not be used as a tool for prosecution of 203

(R. 359)

10—. 310

—3—

The complaint alleges that violation of 203 (f) (1) started on

or about October 14, 1972, and continued up to the day of filing of

complaint (May 1, 1973). The only meteorological data supplied to

validate wind conditions was entered by Respondent (Resp. Exhibit 14)

entitled Local Climatological Data June 1972. From a study of this

one—month period there were two days on which the maximum wind speed

exceeded 25 mph. These times of these two days, at least, are excep-

tions to the rule. As mentioned above, the Board in adopting 203

(f) (1) recognized that it would be unreasonable to expect 100 com-

pliance and built in 203 (f) 

(3) as an override. The Board would be

derelict in

not allowing Respondent the protection afforded 

to it

in

203 (f) (3)

There has been no evidence that O~Keefe has

violated

203 (f) (1)

and this charge will be 

dismissed,

Complaint Alleging Violation of Sec.

9 (A).

The remaining clarge against Respondent regards alleed violation

of Sect. 9 (A) of the Environmental Protection Act, Violation 

alleged from December 1, 1971, to the date of this complaint. The

complaint specifically states that Respondent has

allowed 

coal parti-

cles into the atmosphere in such quantities

as to be injurious to

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

and to 

unreas-

onably interfere with the enjoyment of life or property.

By propos-

ing these charges the Agency has accepted the burden of proof in two

regards:

That Respondent did emit particles of 

coal dust

That said particles were injurious to humans, vege—

tatiori, animal life, or unreasonably 

interfered with

life or

property.

Complainant elicited testimony from 

fi;ie citizen witnesses.

One

of said witnesses (Mrs. Minnich) was ci

cuestionabLe

c~~dibi:Lity.

This is stated

for two reasons.

The

hearing officer in his closing statement to tne

Board points out that her testimony is contradicted

by other

witnesses 

and

that 

her tone of voice led the

hearing officer to

believe 

that she was prejudiced to-

ward the Respondent.

2. hitness~shostility 

was clearly shown in the follow—

inq testimony when under cross—examination:

Q.

Now let’s assume that there was no coal dust com-

ing into your house from 0’ Keefe, you would StIll

run O’Keefe out of the neighborhood, isn~t that

right?

A. Sir, we would like to see

all them industries 

out

of there. We would

like to have what we had be-

fore.

In light of the above, Mrs. Minnich~s testimony will not be

con-

sidered by the Board.

10—

—4—

The remaining witnesses (Mrs. Karpinski P.. 15-68, Mrs. Cannova

R. 69—112, Mrs. Jablonski P.. 112—166, Mrs. Fawcett R. 166-227) all

live within one block of O’Keefe Coal Company. They testified as to

the problems suffered as a result of dust in the area. Each witness

related times when they saw coal dust but could not pin down a spec-

ific date or dates.

Mrs. Cannova stated that if it is very windy you get coal dust

(P.. 77), but that every day it is in the air (P.. 79) 

Mrs. Cannova

testified (P.. 75) that coal dust is oily and filmy and cannot be

washed off. She also testified that the paint on her house was de-

teriorating as a result of the dust (R. 91-93).

Mrs. Jablonski testified that the clothes on her wash line get

dirty (P.. 141), and described the coal dust as black and greasy (R.

114). She further claimed that the black dust was present when the

wind was over the coal yard (R. 133).

Mrs. Fawcett, a 46-year resident of the area, testified that

coal dust was in and out of her house (P.. 167), and that there is

more dust on windy days (P.. 169).

Mrs. Karpinski testified that dust was noticed every day, but

more so on windy days (R. 22), She also testified as to the prob-

lems of hanging out clothes (P.. 39).

Three of the four witnesses, when asked if they suffered any

physical discomfort due to the dust, answered they do not (Karpin-

ski P.. 36, Cannova R. 86, Fawcett P.. 201).

In rebuttal Respondent took issue with a number of points

raised by citizen witnesses. The nature of dust as characterized

by witnesses varied from hard and brittle to oily. Respondent claims

that it is impossible to determine coal dust from other dust by mere

visual observation (see test of Gerald Duckett below). The fact that

witness Karpinski never saw dust actually leave the yard (P., 65) was

pointed out. Mrs. Cannova~stestimony as to peeling paint was 

sum-

cessfully rebutted (R, 101) due to the fact that the house was not

peeling when it was repainted. This would indicate that the peeling

could very well be due to 

factors

other than coal dust,

Dennis Belsky gave testimony relating to the high volume sam-

pling procedures used at or around

O~Keefe!s coal yard. 

Two sainpiens

were set up both on the same side of O~Keefe’s yard.

Samples were

taken for twelve days in June of 1972.

From the placement of the

high volume samplers the wind 

would have to be blowing from the sotib,

southwest, or 

west to pass over Respondent ‘s coal pile before reach-

ing

the hick—volume units.

The iollowinq is a summary of results

(Complainant s 

Exhibit: #3)

—5—

Date   

Site I      

Site II     

Wind   

Wind

ug/m~   

ug/m3    

5, SW, W  Other

6/13    

139

180

100

—

103

142

—

100

147

165

—

107

112

—

100

22

113

104

—

100

—

100

26

155

187

27

156

192

16

28

131

As one can see from a glance at the aforementioned data, the parti-

culate matter entrapped bears very little conclusive evidence that when

the wind blows directly over Respondent’s yard the amount increases.

Belsky stated (P.. 362) that he saw coal dust blowing on 6,/22/72, but

that

it

was blowing away from him because of the wind direction,

He al-

so testified that the particulate

level showed an increase when the

wind

direction was from the south, southwest, or west during alL or part of

the sample period (R. 348).

In rebuttal Respondent challenged the validity of the above testing.

It was pointed out that the highest particulate

counts were recorded when

the wind was 84 from “other” directions,

and that the second highest

reading was when the wind was 80 from other directions

(R. 40 8-9)

The

location of the high volume samplers was also strongly attacked (P.. 382)

The point was raised that by putting two samplers downstream of the

source it is impossible to su~tractbackground. Due to the high poten-

tial for dust from other sources, it was argued that background could be

a significant part of the recorded amounts. Respondent cast doubt on the

June 13, 1972, data by pointing out that the day was hazy and smoky (P..

411) and that this in itself would yield higher than normal counts. Re-

spondent points out that the Kelly School sampling station was the clos-

est air monitoring station to 

~he O’Keefe yard, and that the geometric

mean of this area was 118 ug/m (P.. 419). The geometric mean from the

O’Keefe tests were 112 and 119 ug/m3 (P.. 420) 

Under redirect examina-

tion, Complainant states that dispersion would rule out the Kelly School

as a viable background (R. 423). It must be noted, however, that no oth-

er source of background was offered.

Although the above is true, the language in Section 9 (A) clearly

says: “either alone or in combination with contaminants from other sourc-

es” (emphasis added). This argument would tend to discount background if

it is proven that O’Keefe did indeed contribute to the emissions. There

is, however, no proof that particles contained on the high volume filters

were coal dust. Testimony (Beisky P., 353) was elicited that although

10— 313

—6—

testing was done on three filters, the laboratory tests were inconclu-

sive, and that there is no indication as to whether the free carbon

was from coal particles or from other sources.

Two Agency investigators testified (Seymour Levine P.. 441-499,

Caesar Krzymowski P.. 502-604) as to their investigation of the O’Keefe

property, and their interviews with citizens in the area.

Mr. Levine stated that he first visited Respondent’s property on

December 1, 1971 (P.. 444), as a result of citizen complaints. He

claimed that he saw the operation of an end loader in the yard and

that the operation was emitting a gray transient cloud (R. 448),

which he believed to be partially coal dust, Complainant’s Exhibit

66 was introduced which is a photograph showing dark dust under a loc-

al resident’s door mat. Under cross—examination Respondent took issue

with Mr. Levine’s ability to distinguish coal dust from other dust,

and brought out the point that there are other types of dust in the area

(P.. 471) 

Respondent also questioned why no sampling was done on the

dust under the doormat (P.. 478).

Mr. Krzymowski also testified (P.. 512) to seeing dust (cloud) dur-

ing loading of trucks and that the plume dissipated in 10 to 12 feet.

Complainant’s Exhib:Lt 

6E was introduced

which purports to show emiss-

ions from a truck loading operation. Mr. Krzymowski supported the

testimony of Mr. Levine as to dust on window sills 

and

under door mats.

Witness testified as to techniques used to suppress dusting. Reference

was made to chemical binders which would in effect seal the surface

(P.. 529). Complainant entered exhibits 7-A,C,D which are chemical lit-

erature which explains technology available to suppress dust.

At this point in the hearing, Respondent elicited testimony from

a number of witnesses to attest to operating procedures at O’Keefe md al-

so to 

rebut some of

the testimony above,

Joseph P.. Comella was an investigator

for the City of Chicago

En-

vironmental Control Department from 4/15/59 to 9/1/72. Mr. Comella

testaried triat the coal piles at 0 Keete are the same heigut as at oth-

er yards (P.. 622) 

that there were complaints on many other

facilities

in the area (P.. 624) 

and that during his visits to 0’ Keefe he observed

no dust coming out of the yard (P.. 630)

Respondent’s ExhibIt 12 was

entered, which is a summary 

of many inscections made of O’Keefe

vans

by the City of Chicago.

In reading through these the Board finds

again

and again statements by the

investigators that no dust or violations

were found. At 

ccc point a complaint

was lodged 

in the Circuit

Court

against 0 Keefe ~R, 

312) and

O’Keefe was put on observation. This

complaint eas lodged on a day when the wind speed was approximately 30

mph. Reseondent’s Exhibit 12 A is a

letter of agreement between Lhe

City of Chicano and O’Keefe dated. November 8, 1972.

Witness reported

that in his opinion t:ne

fence 

at Okeefe was higher than at most yards

3 ~oe1 f 06 ~ ( C? ~~urdcr’t

‘C

Lzh~cLL 33

ow~

:~c 8 

Ic

legal :Lirnit for fences in Chicago)

He ale a testified

that the roads

and piles seemed to he oi1y (P.. 668)

—7—

Mr. Gerald Duckett next testified in Respondent’s behalf. Mr.

Duckett is an expert in the field of coal and coal handling. He ex-

plained that O’Keefe purchases high volatility bituminous coal which

is sized and oiled at the mine site. He testified that the sole pur-

pose for oiling of coal is to reduce dusting (P., 763) and that oiling

cost $.30/ton extra (P.. 764). He also stated that oiling of coal is

the best dust suppressant and that the use of chemical sprays would

be ineffective in that it is only surface active (P.. 773). Mr. 

Duck—

ett testified that he could not tell small particles of coal dust from

other particles by observation (P.. 803) 

and that in his opinion the

only way to be sure what was coal dust would be by chemical analysis.

The witness also testified that O’Keefe is a well-run coal yard (P.. 826)

and that in his opinion they are using all known steps to control dust

(P.. 827)

In cross-examination Complainant elicited testimony that

even though the coal was oil-treated, some dust is generated through

handling (P.. 840). Mr. 

Duckett further testified that if

coal dust

was present, in his opinion 

it is highly possible it was coming from

a large coal yard about ten blocks away. This statement was made be-

cause that coal dust was not oil treated, and therefore more susceptible

to wind blowage (R. 819)

Two additional witnesses testified, Mr. F, KcNichols (P.. 877—896)

and Mr. P.. Blaising (P.. 89 7-920) 

Both of these witnesses had vast ex-

perience in the field of coal, Both witnesses claim the best 

way

to

barge unloaded coal is by a clam shell bucket (P.. 886, 903), because

it is cleaner and avoids breakage. Mr. McNichols testified that O’Keefe

sprays their roads with oil to keep down dust and that he had never

seen any other coal yard take this precaution (P.. 888). He 

further

testified that the crane operator at Respondent’s is an “exeert’ and

is very careful (P.. 890) 

This the witness claims to be a fact in

that he had occasion to hire the unloader for his yard. Mr. Blaising

also testified that O’Keefe used the best methods available (P., 907)

Mr. Barry O’Keefe next testified. He entered evidence (Complain-

ant’s Exhibit 31) which was a record of hours worked by employees.

During

the period of April 27 to September 6, 1972, no crane operator

worked past 6:00 p.m. This was a very effective rebut to earlier test-

imony by citizen witnesses that they had (during the summer of 1972)

talked to a crane operator at O’Keefe after 8:00 p.m. Mr. O’Keefe al-

so testified as to the steps taken

at Respondent’s yard to 

abate dust,

He stated that

the piles and roads are sprayed (P., 

947) and that the

manager of the yard was instructed to be very careful in unloading

(P.. 943)

it was pointed

out

tnat it is also an economic advantage

to avoid breakage in that the customer is paving for a certain size

coal, and. resents dust.

Iviany exhibits were entered showing the other potential

emisSian

sources

in

the area.

Pictures displaying dust being kicked up by

auto-

mobiles on local unpaved roads were

also displayed.

—8—

In summary, the Board finds that the Environmental Protection

Agency has not met its burden of proof in the 9 (A) violation. At

no time did it conclusively prove that dust did indeed emanate from

the property of O’Keefe. Failing this the Agency in no way proved

that any dust in the area was coal dust. In an area such as this,

it is imperative that the emission source be traced to Respondent.

The area is such that the probability

of emissions is present from

many sources, and that the types of emissions are very difficult

to tell apart with the naked eye. Although the Board feels that

the people of the area are in great need of relief from pollution

in the area, it also feels that the polluter must be accurately

identified before action can be taken. This did not happen in the

instant case. The record of this case can only leave the Board

with the opinion that O’Keefe is doing everything possible to con-

trol its emissions.

This Opinion constitutes the findings of fact and conclusions

of law of the 

Board.

ORDER

ITIS THE ORDER of the Pollution Control Board that charges of

violation of Section 9 (A) of the Environmental Protection Act and

Rule 203 (f) (1) of the Illinois Pollution Control Board Rules and

Regulations, Chapter 2, Part II, be dismissed.

IT IS SO ORDERED.

Mr. Dumelle dissented.

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

Board, certify that the above 0 inion arid Order was adopted by the

Board on the 

/.~‘~‘

day of 

____________,

1973, by a vote of 

‘.1

to

~h~z?~L

10—316