ILLINOIS POLLUTION CONTROL BOARD

May 24, 1973

ENVIRONMENTAL PROTECTION AGENCY

v.

)

72—392

AURORA METAL COMPANY, FASKURE DIVISION,

a foreign corporation licensed to do  

)

business in Illinois          

)

DOUGLAS P. MORING, ASST. ATTORNEY GENERAL, APPEARED ON BEHALF OF

ENVIRONMENTAL PROTECTION AGENCY

JOHN M. LANONT APPEARED ON BEHALF OF RESPONDENT

OPINION AND ORDER OF THE BOARD (BY SAMUEL T. LAWTON, JR.):

A two-count complaint was filed against Respondent. Count I

alleged that Respondent’s Aurora operation, in the production of

coated sand, caused or allowed the discharge of phenolic odors 

so

as to cause air pollution, in violation of Section 9(a) of the Act.

Count II alleged that the foregoing operation caused or allowed the

discharge of sand particles and grindings into the atmosphere so as

to cause air pollution, in violation of Section 9(a) of the Act. The

entry of a cease and desist order and penalties in the maximum statu-

tory amount are sought. The violations are alleged to have occurred

between July 1, 1970 and the date of hearing, the first date of which

was November 27, 1972.

Hearings were held in November, 1972 and January, 1973. Respon-

dent’s facility is located in the City of Aurora, in an area of mixed

residential and industrial uses. It manufactures resin—coated sand

used for the fabrication of shell cores and shell molds used in the

foundry industry (R. 311). Respondent’s facility consists of raw sand

handling and storage plus parallel process lines (A and B), each of

which consist of sand weighing, sand drying, sand mixing with resin,

followed by a water quench, product fragmentation product screening,

product cooling and storage and bagging (R. 337-340).

Possible sources of particulate emissions and phenolic odors are

the two sand dryer stacks, the two mixer stacks, the stack from the

Line A fluidizer bed cooler, the stack from the internal exhaust system

scrubber, together with the sand storage tank vents, the conveyor

system and the unloading hopper (R. 430-431). The last two areas

could be considered as fugitive dust sources.

At the time of the November, 1972 hearing, the process emission

control equipment then in operation included a scrubber on the i~iterna1

exhaust system, which included the screens and Line B cooler (R. 379)

8—81

two cyclones on the Line A fluidizer bed cooler (R. 380) and cyclones

on the sand dryers (R, 381). Prior to the January, 1973 hearing, a

multiclone collector had been installed ahead of the scrubber (R. 419).

Since the gravamen of the complaint is the causing of air pollution

which, in turn, is defined as causing the presence in the atmosphere

of contaminants of sufficient quantities and characteristics as to

unreasonably interfere with the enjoyment of life or be injurious

to human health, it is necessary to present subjective evidence both

in support of and in contradiction of the allegations of such pollution.

Of necessity, the impact that the industrial emissions have on adjacent

areas, generally residential in nature, must be examined to ascertain

whether, in fact, the requisite showing has been made. As in most cases

of this sort, the testimony is conflicting, the odors as alleged as

a basis of violation are difficult of identification and subjective

interference with the enjoyment of life is often a matter of opinion.

In the present case, establishment of violation is all the more

difficult because while not controlling in instances of this sort,

Respondent has performed stack tests which indicate, at least so far

as the particulate emissions are concerned, that the operation is not

in violation of the relevant Regulations.

Likewise, its rebuttal evidence with respect to phenol emissions

demonstrate quantities that, if extrapolated to Respondent’s property

line, might suggest that the odor emissions are not of a level to con-~

stitute an odor nuisance. However, we do not find the evidence suffi-

cient to warrant such conclusion. Accordingly, while Respondent may

have established a prima fade defense, it still becomes necessary to

examine the record to ascertain what the subjective impact on the

community has been of both the particulate emissions and the odor emis-

sions to ascertain whether, in fact, a Section 9(a) violation has been

established.

We believe, on the record of the instant case,~ the Agency has

established its burden of proving a Section 9(a) violation. The testi-

mony of the principal witnesses introduced by the Agency can be summar-

ized as follows:

Mrs. Palmer testified that she lives directly across the street,

to the south of Faskure. She notices dust 

5 to 6 times

a week and

thinks the use of the new type unloading truck increased the frequency

CR. 42).

The dust is yellowish in color (R. 69) and coats siding of

the house and settles in closets CR. 40),

She can watch the dust coming

from Faskure CR. 30).

She has never complained directly to Faskure,

but to the local authorities

(R. 60)

The odor is noticed when the wind

blows from the

northeast or northwest (R. 

44). For the period of

July, 1970 

to November,

1972, 

the odor was noticed

2

3

times a

month (R. 41). It smells like phenol, is disagreeable and burns the

nose and throat (R. 40).

—2—

8

—

82

Mrs. Carrion testified that she lives directly north of Faskure

and about three quarters of a city block away 

(R. 72). 

Permanent

storm windows were installed to keep out dust and odors (R. 79).

Dust is received from both Faskure and Meyer Material, but she can

tell the difference in dust between the two CR. 82).

The odor sears

the nostrils and throat and smells like burning film (R. 75).

Mrs. Hoim testified that she lives next door to Mrs. Palmer and

has observed a cloud of material blowing directly from Faskure

CR. 94). The material is a gritty substance that gets on the body and

in the mouth CR. 93). Central air conditioning, and an electronic

air filter were installed to keep grit out of the house (R. 101).

She notices the odor about once a week CR. 99). The unloading opera-

tions, blowing under pressure from the cylindrical tank truck to the

receptacle, caused the gritty particles (R. 121).

Ms. Christophersen testified that she lives directly north of

Faskure, about a block away. The emission she notices is a yellow

grease which gets on the windows and is hard to remove (R. 146). She

also notices odors 2 or 3 times a week of varying intensity (R. 144).

The odor is offensive and hurts the nose (R. 140). It smells like

glue or paint and her wind vane indicates that it comes from Feskure

CR. 141). She doesn’t invite guests for lawn parties anymore because

the odor causes coughing and sneezing (R. 148). The odor problem

has occurred for the last 3 or 4 years (R. 149).

Mr. Palmer testified that he is the husband of Mrs. Palmer who

testified previously. The dust emissions he notices come from the

stacks on the factory building and from the unloading pit (R. 162).

The dust is a very fine gritty substance 

(R.

161).

Mr. Boyd testified that he lives north of Faskure. He is not

aware of grit but does notice odors 2 or 3 times a week (R. 178).

The odor smells like burning plastics and seems to come from whitish

smoke emitted by Faskure (R. 174). While in the yard in the summer of

1971, the odor caused watery eyes, headaches and a raspy throat (R. 176).

Two citizen witnesses introduced by Respondent testified that

they were not bothered by dust or odors from Respondent’s plant. (Resp.

Exhibits 28, 29). These witnesses appear to have resided in the area

only since the spring of 1972, whereas the Agency witnesses have been

residents of considerably longer duration.

We believe on the basis of the foregoing testimony both an odor

and particulate nuisance has been established and that Section 9(a)

has been violated.Nor can we accept the somewhat cavalier argument of Res-

pondent that while the foregoing conditions may have been established by the

record, they do not constitute unreasonable interference with the enjoyment

—3—

8—83

of life. Respondent, in its brief, states that the odor emissions

“only” cause a burning sensation on warm days. With respect to Gene

Carrion, Respondent observes that the only ill effects she gets from

the odor is a burning throat.

However, it is these very conditions that the statutory

provisions are designed to ameliorate. Burning throats or

burning sensations caused by industrial emissions cannot be taken

as lightly as Respondent suggests. Clearly, there has been

interference with the enjoyment of life. Respondent also con-

tends that because its sand supplier responsible for the particulate

emissions was an independent contractor that this legal relation-

ship absolves Respondent of all responsibility. We cannot accept

this conclusion. The entire subject of the responsibility of a

~o~apany for the pollutional discharges of its independent contractor

has been set forth in full in Environmental Protection Agency v.

James McHugh Construction Company, #71-291, 4 PCB 511 (May 17, 1972),

in which we noted that the relevant statutory provision finds lia-

bility for the allowance of air pollution, which impose affirmative

duties on a Respondent going beyond

those of common law to exercise

care to prevent others from causing pollution. As in the McHugh

case, Respondent exercises the capability of supervising and con-

trolling the time, nature and degree of emissions from sources

used by its independent contractor. This was not a single episode

operation such as the anology of the taxicab passenger not being

liable for the smoking exhaust. Likewise, as in the McHugh case,

the Respondent appears to have recognized its obligation by endeavor-

ing to take steps to ameliorate the condition.

We believe on balance

that notwithstanding Respondent’s demonstrated compliance with the

particulate regulations and its evidence with respect to the frequency,

detectability and characteristics of the phenolic odor, Respondent

has caused or allowed odor and particulate emissions in quantities

and under such conditions as to constitute an interference with the

enjoyment of life of people in the vicinity of Respondent’s plant.

Likewise, since no estimates or particulate

samplings were

performed

at the hopper house located at the foot of the sand con-

veyor where the pneumatic trucks were unloaded. Triese fugitive dust

emissions could increase the particulate emissions beyond permissible

regulatory limits.

We recognize that Respondent appears willing to reduce its odor

emissions. It has applied for a permit from the Agency for two

thermal oxidizers (R. 403) to be installed nine months after Order

(R. 413) and according to Respondent’s expert, will burn and remove

phenol in the mixer exhaust (R. 451). Since up to 96 of the phenol

is emitted from the mixer stacks, 

such control with after burners

should achieve a significant overall reduction in odors.

To completely eliminate phenol emissions either additional

manifolding of the scrubber and fluidizing bed exhausts to the after

burner or the elimination of the phenol formaldehyde type of resin

from the 

coating process would 

be

required.

Investigation of 

pheno1-~

free resins has not produced satisfactory results, Further 

tests

are

being made. This work, if successful, would eliminate the phenolic

odor problem but seemingly might create a new odor problem.

—4—

8—84

In consideration of the foregoing and particularly in recogni-

tion of steps being undertaken 

by Respondent to ameliorate the

odor and particulate emission conditions, we will impose a relatively

small penalty in the amount of $1,000 and direct Respondent to abate

its odor and particulate emissions to a degree that will abate the

nuisance conditions found to have existed in this proceeding.

We will grant Respondent nine months to achieve abatement of its

odor emissions so as to no longer violate

Section 9 (a) 

We grant

Respondent 60 days in which to abate its particulate emissions so as

to no longer violate Section 9(a). We believe a substantial diminutior

of particulate emissions can be achieved through better housekeeping

methods and control of activities of Respondent’s contractors which,

in the past, have resulted in the particulate emissions above noted.

This opinion constitutes the findings of fact and conclusions of

law of the Board.

IT IS THE ORDER of the Pollution Control Board that:

1. Penalty in the amount of $1,000 is assessed against Respon-

dent for violation of Section 9(a) of the Environmental Pro-

tection Act in the causing or allowing of air pollution by

the emission of phenolic odors and particulates as charged

in the complaint and found in this proceeding.

2. Within 60 days from the date hereof, Respondent shall cease

and desist the causing or allowing of particulate emissions

so as to constitute violation of Section 9(a) of the Act

in unreasonably interfering with the enjoyment of life and

property and being injurious to human health.

3. Within 9 months from the date hereof, Respondent shall

cease and desist the causing or allowing of phenolic

odors as charged in the complaint and found in the proceeding

so as to constitute a violation of Section 9(a).

4. Within 30 days from the date hereof, Respondent shall submit

to the Environmental Protection Agency, a program which shall

assure compliance with the conditions set forth in paragraphs

2 and 3 above, to be approved by the Agency. Upon approval

of such program by the Agency, Respondent shall submit, in

form satisfactory to the Agency, a bond in the amount of

$~3,000, guaranteeing installation of the equipment and com-

pliance with all conditions as set forth in this paragraph,

which bond shall provide for penalty in the amount of $10,000

in the event Respondent fails to cause reduction of its

particulate emissions and odor emissions to an extent where

they shall no longer constitute violations of Section 9(a)

within the time periods hereinabove set forth.

—5—

8

—

85

Bond shall be mailed to: Fiscal Services Division,

Illinois Environmental Protection Agency, 2200

Churchill Drive, Springfield, Illinois 62706.

I, Christan Moffett, Clerk of the Pollution Control Boa~d, certify

that the above Opinion and Order was adopted on the 

~‘/

‘

day of May,

1973, by a vote of  

to

C”

—6—

— RB