ILLINOIS POLLUTION CONTROL BOARD
October 18,
1973
ENVIRONMENTAL PROTECTION AGENCY,
Complainant.
v,
)
PCB 73—104
D.
H. MAYOU ROOFING AND SUPPLY
COMPANY,
Respondent.
Dennis Fields, Assistant Attorney General for the EPA
John A.
Berry, Andrew J~O’Conncr and Michael
T.
Reagin, Attorneys
for Respondent
OPINION AND ORDER OF THE BOARD
(by Mr.
Henss)
Complaint was filed by the Environmental Protection Agency against
D,
H.
Mayou Roofing and Supply Comuany of Ottawa,
Illinois alleging
that emissions from four asphalt storage tanks have causedair pollution
in violation of Section 9(a)
of the Environmental Protection Act and
that two of the storage tanks were installed in April
1972 without
Agency permit in violation of Section 9(b)
of the Act and Section 3—2.110
of the Rules and Regulations Governing the Control of Air Pollution.
Respondent moved to dismiss
the Complaint on the ground that Section 3(b)
of the Act defining “air pollution”
is vague and unconst±tutionai~that
Rules
and Regulations Governing the Control of Air Pollution have not
been adopted by this Board and therefore may not be enforced; that
Section 9(a)
and Section 3(a)
of the Statute are vague and indefinite
and are an unconstitutional attempt to delegate :Legislative or
judicial functions to an administrative board.
The Motions to Dismiss the Complaint are denied.
The statutory
definition of air pollution is sufficient to meet the constitutional
test.
With regard to the delegation of functions we believe that the
comment of the Court in EPA v. Ford _Ill.
App.
3d
is equally
appropriate here.
In Ford the Court said:
“By reason of the increasing complexity of society and the
burdens on all branches of government,
courts and legislatures
alike in the past
50 years have come to recognize that the
delegation of functions to boards, commissions and agencies,
is becoming more and more essential
to efficient government.’...
“Although the essentially legislative and judicial powers cannot
be delegated, we believe it implicit in the authorities that
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535
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where direct or immediate judicial action
is inexpedient
or impractical, quasi-judicial functions may be conferred
upon and exercised by an administrative agency,
provided
the laws conferring such powers are complete in their
content; are designed to serve a general public purpose;
are such as to require
a consistent and immediate adminis-
tration; and further provided that all administrative
actions are subject to judicial review.”
The delegation of powers in the Environmental Protection Act meets
that test.
See: Southern Illinois Asphalt Co.
v. EPA
Ill. App.
3d
(Oct.
10.
1973)
Section 49(c)
of the Act states that:
“All rules and regulations of the Air Pollution Control
Board.
.
.
relating to subjects embraced within this Act
shall remain in full force and effect until repealed,
amended,
or superseded by regulation under this Act.”
We hold therefore,
that the Rules and Regulations Governing the Control
of Air Pollution are in full
force and effect and are properly the
basis for an enforcement action brought before this Board.
Respondent also contends that an Agency investigator came on
Respondent’s prooerty without a warrant for the purpose of obtaining
evidence, and that photographs taken by the investigator should be
excluded from evidence.
The Motion to Exclude that evidence is denied.
This is not a criminal case.
The Environmental Protection Act
authorizes EPA investigators
to come onto property for the accumulation
of evidence in civil proceedings.
Respondent’s asphalt roofing business is
located at 428 W. Superior
Street in Ottawa.
Mayou has been engaged in this business in Ottawa
since 1942.
Prior to April
1972,
the Company heated open tar pots or
kettles at this property and then hauled the kettles to the job site.
Asphalt was delivered to the plant in solid bricks and was stored in
a solid form in cardboard cartons until heated in the kettles.
Since April 1972 Respondent has been using gas fired heaters
to
keep the asphalt in
a molten state
in storage tanks which are located
at the company’s Superior Street property.
About 200
to 300 tons of
molten asphalt are now delivered annually by transport trucks directly
to this facility.
Pumps mounted on the transport trucks transfer the
asphalt through flexible piping to two 10,000 gallon storage tanks.
Respondent’s storage tanks are equipped with gas—fired heaters,
a top
mounted manhole with cover hatch, and an open vent pipe which comes off
the top of the storage tank and extends
to within 12” of the ground.
The vent pipe is
2 1/2”
in diameter.
Until February or March 1973 it
was normal operating practice to leave the hatch cover open for the
30
-
60 minutes needed to transfer the asphalt into the storage tanks.
This process occurs about every two to ten days during the asphalt
9
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536
—3—
roofing season and about every two months during slower periods.
Testimony indicated that the cover hatch has also been observed
partly open since Ilarch 1972
(5/24/73,
R.
50,
169, Complainant
Exhibit
4).
Respondent testified that vapors with an oil odor are
released during the transfer process but insisted that the vapors
are mostly “asphalt steam”
(5/24/73,
R.
21).
When the asphalt is to be applied on a job,
it is transferred
from the 10,000 gallon storage tank to small tank trucks which are
called day tanks.
About
10 minutes are required
to pump enough asphalt
to fill
a
5 ton day tank.
The day tank truck is then delivered to the
job site where the asphalt is applied still in the molten state.
Thus, it appears
that Respondent’s main sources of emissions
would he the vent pipes and manhole openings on the storage tanks
and day tanks.
All odorous emissions are vented to the atmosphere
without use of control equipment to burn or scrub the odors.
During the first of three public hearings
16 citizens testified
regarding emissions from this operation.
There was agreement among
complaining witnesses that the worst emissions began shortly after
Respondent installed the
tvc asphalt storage tanks
and began storing
the asphalt in a molten state.
Many of the witnesses claimed that they began to experience
headaches and nausea only after the new equipment was installed
(5/22/73,
R.
26,
76,
94,
104,
111,
141,
151,
160,
171,
175).
Two
witnesses afflicted with emphysema testified that the odors had
forced them to leave their homes on various occasions
(5/22/73,
R.
110,
172).
The odors were described by the witnesses as a “tar smell”
a “sickening tar odor”, and “like creosote”.
Depending upon the
direction of the wind,
the witnesses charged that the odors were
continually present in or near their homes.
One witness recalled
being awakened by the odor at 3:00 a.m.
(5/22/73,
R.
161).
Another
stated that she could “usually smell them all the time early in the
morning”
(5/22/73,
R.
176)
There was also strong witness agreement that odors occurred in
the area regardless of whether or not “white fumes” were observed
coming from the top of the storage tanks.
Some of the Agency witnesses
testified that they were able to keep the odor from entering their
homes while others claimed the odor entered their homes while air
conditioners were operating.
Three of the witnesses testified that
they had been forced to halt outdoor meals because of the odor (5/22/73,
R.
126,
186,
189).
Other witnesses indicated that they had called
the police when the odors
from Respondent’s property became unbearable.
Marcevio Lopez testified that his daughter had suffered from breathing
difficulties because of the odors
(5/22/73,
R.
136).
Respondent’s
facilities were identified as the source of the odors by every Agency
witness.
In rebuttal, three residents of the immediate area testified that
they had detected tar like odors near their homes that were thought to
9
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537
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be coming from the Mayou site.
However,
they
were not bothered
by the odor.
One of these witnesses said the odor from the tar
kettles used
a few years ago had been worse
than odors experienced
recently.
This was probably true for that brief period of time in
the morning when the solid asphalt was customarily melted in the
kettles.
Testimony indicated that this operation did cause a lot of
smoke, both at the plant site and on the
job.
However, these smoke
emissions from the melting of asphalt in kettles had been intermittent
at the plant site.
Respondent hired a professional photographer in order to provide
a series of photographs showing the nature of the neighborhood
(5/24/73,
R.
177).
These photographs were used to show the suitability of the
roofing company to the area in which it is located.
There are views
of areas near some railroad tracks and a less affluent residential
community.
A number of industries
and commercial establishments are
located nearby.
Respondent’s location is in compliance with local
zoning requirements.
The evidence does show that people live near
Respondent’s
facility.
About 57 homes are located within a one block
radius of the plant.
These residents are entitled to protection from
air pollution.
Respondent also hired Arro Laboratories,
Inc.
to conduct quanti-
tative odor measurements.
Arrots manager of Air Resources testified
that he and three other Arro employees conducted the measurements with
a scentometer on the morning of
the last public hearing.
Results of
the tests appear to be inconclusive and of little probative value in
this case.
One of the odor panel members was continuosly able to
detect an odor at a dilution ratio of 160 to
1.
The Arro manager
indicated that such detection was unusual and could have been a result
of cleared sinuses, possibly caused by that member’s weekend diving
activities.
The evidence indicates that Mayou’s emissions were in compliance
with Regulations.
During cross examination,
an Agency engineer testi-
fied that he had calculated Respondent’s actual particulate emission
rate to be about 15.3 lbs. per hour, substantially below the allowable
rate of 33.3 lbs. per hour.
Based on this evidence,
Respondent
asserted that
a showing of “compliance with Regulations or even part
of the Regulations” could be an absolute defense to a Section 9(a)
violation.
However, the Statute provides that compliance with the Regulations
is
a “prima facie” defense, not an absolute defense. IEPA Section 49(e)3
In Dale
H. Moody vs. Flintkote Company, PCB 70-36 and 71-67, we
stated:
“It is entirely clear from a reading of the Act that
a person
can be guilty of
a violation of the basic prohibitions set
forth in the Act even though he is complying with the Regulations
which are applicable to his particular emission or discharge
source.
For the Act specifically provides that any person
is
prohibited from discharging contaminants into the atmosphere
which cause or tend to cause air pollution.. .or.
.
.violate the
Regulations or Standards adopted by the Board under this Act”,
(Emphasis supplied)
9
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532
—5—
A person who is complying with the Regulations may still cause
“air pollution” within the meaning of the Statute.
In EPA vs.
Southern Asphalt Company,
Inc.,
PCB 71-31 we said:
“It is manifest from the testimony that Respondent’s
operation,
even if conducted within the emission
limits of the Regulations, would constitute a severe
nuisance and greatly interfere with the enjoyment of
life and property of the residents in the immediate
vicinity.”
The Board reaffirms that position today.
We find that the emissions from Mayou’s operation sub-
stantially interfered with enjoyment of life and property by some
of his neighbors.
According to the evidence these witnesses
tolerated Respondent’s previous method of operation with little
complaint.
The change in procedures increased the emissions of
tar—like odors and caused them to occur more frequently and at
times when they were no longer acceptable.
We believe the
evidence is manifest thatRespondent’s emissions constitute
a
nuisance and thereby cause air pollution.
At the same time odors
were increasing near Respondent’s plant,
the odorous emissions
“on
the job” were apparently decreasing.
We appreciate Mayou’s desire
to improve procedures on the
job,
but will require that the changed
operation not cause an odor nuisance for persons who live near
the plant.
Mayou testified that he installed the equipment in question
at the present location in April 1972 without Agency permit
(5/24/73,
R.
6,
7)
.
Mayou admitted that he had altered the storage tanks
after installation by installing
a vent pipe and that the equipment
did not include any air pollution control devices
(5/24/73,
R.
13,
263).
He testified that he first learned of the Agency permit
requirements from Agency investigator Sherman in August or September
1972 and that Sherman had promised to send permit forms but failed
to do
so.
Mayou further testified that he requested the permit
forms from the Agency’s Springfield office and later received
permit forms for “oil refining”.
Investigator Sherman said he had instructed his secretary to
mail the permit forms and a copy of
•the Regulation to Mayou.
Under the circumstances the penalty for failure to obtain a
permit will be minimal.
The record shows that there are many pollution control systems
available to control Respondent’s emissions
(e.g.
activated carbon
adsorbtion, vapor condensers, inert gas overlay, closed loop
system, incineration, vapor relief valves and others).
The cost
—6—
£or control equipment suited to REspondent’s needs could range
from about $100
for a closed loop system to about $30,000 for a
sophisticated activated carbon adsorbtion system.
Respondent’s
own equipment supplier testified that several control systems
for his line of equipment had been available for a number of
years
(5/24/73,
R.
149,
157, 168).
Based on the entire record,
the Board finds that Respondent
has caused air pollution in violation of Section 9(a)
of the Act
and that Respondent did install, operate and alter equipment
capable of causing air pollution in violation of Section 9(b)
of
the Act and 3-2.110 of the Rules.
The fact that Mayou’s emissions are not in excess of our
Standard greatly mitigates the penalty.
For all violations a
monetary penalty of $1000 seems appropriate.
We shall also
direct Respondent
to submit a plan for the elimination of the
nuisance.
ORDER
It is the Order of the Board that:
1.
D.
H.
Mayou Roofing and Supply Company shall pay
to the State of Illinois by November 20,1973 the
sum of $1000 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, within 45 days submit to the
Agency a compliance plan designed to reduce odors
and eliminate the nuisance and Statutory violation.
The plan shall be designed to achieve compliance
within
90 days
from the date of this Order.
Re-
spondent shall cease and desist from its violations
following the compliance date.
3.
Respondent shall, by November 20,1973,
submit. to
the Agency completed permit application forms which
were required for past installation of equipment.
Mr. Dumelle and Mr. Marder dissent.
I, Christan L. Moffett,
Clerk of the Illinois Pollution Control ~oard,
hereby certify the above Opinion and Order was adopted this
/~
“
day of
~
,
1973 by a vote of
3
to
~
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540