ILLINOIS POLLUTION CONTROL BOARD
March
8,
1973
ENVIRONMENTAL PROTECTION AGENCY
)
v.
)
#72—147
LITTON POWER TRANSMISSION DIVISION,
a division of LITTON SYSTEMS,
INC.,
~ Delaware corporation,
a wholly
owned subsidiary of LITTON INDUSTRIES,
INC.,
a Delaware corporation
MICHAEL BENEDETTO and RICHARD W. COSBY, ASST.
ATTORNEYS GENERAL,
ON
BEHALF
OF ENVIRONMENTAL PROTECTION AGENCY
WILLIAM A.
HOUSTON,
ON BEHALF OF RESPONDENT
OPINION AND ORDER OF THE BOARD
(BY SAMUEL T.
LAWTON,
JR.):
Amended complaint was filed against Litton Power Transmission
Division,
a division of Litton Systems,
Inc.,
alleging
that between
July
1,
1970 and
the close of
the record herein,
Respondent,
in the
operation of
its gear manufacturing
facility located at 4401 West
Roosevelt Road,
Chicago,
Illinois,
emitted particulates
in violation
of Rule 2-2.54
of
the Rules and Regulations Governing
the Control
of Air Pollution.
The entry of
a cease and desist order and penalties
in the maximum statutory amount are sought.
Hearing was held in Chicago
on December
18,
1972.
Briefs have
been filed by both parties.
We find the evidence offered by the
Agency
sufficient
to
establish
a
violation
of
the
Regulation,
as
charged,
and
that
Respondent
has
failed
to
rebut
the
Agency’s
case.
The
original
complaint
filed
in
the
proceeding
alleged
a
viola-
tion
of Section
9(a)
of
the
Environmental
Protection
Act
with
respect
to
the
causing
of
air
pollution,
in
addition
to
violation
of
the
specified
provisions
of
the
Rules
and
Regulations
Governing
the
Control
of
Air
Pollution.
The
amended
complaint
dropped
the
air
pollution charge and was limited to only the violation of
the
parti-
culate
regulations.
The
evidence
of
violation
was
limited
to
only
one
gray
iron
cupola.
Respondent’s
operation
is
characterized
as
a
gear
manufacturing
facility.
Approximately
120,000 square feet of manufacturing
area
are
leased,
which
facilities
contain
both
the
foundry
operation,
where
the
castings
are
produced using the gray iron cupola,and
the
7
—
189
machine shop operated in conjunction therewith.
The cupola operates
on a four—day week schedule at approximately 1-1/2 hours per day
(R. 84-90).
Respondent employs
69 persons at this location and has
an annual payroll of approximately $590,000.
A substantial number of
the employees are from minority groups.
On December
3,
1970,
the cupola was sealed by the City of Chicago,
presumably for violation of the City’s Air Pollution Ordinance.
Appeal was
taken to the Appeal Board of
the City of Chicago and hear-
ings held during both 1971 and as recently as July 25,
1972.
During
the course of the hearings,
a gas ignition system and a natural gas
three—nozzle afterburner were installed
(R. 106—107).
Cupola opera-
tions
were
also
reduced
to
a
four-day
week
schedule
from
what
pre-
viously
had
been
a
five-day
per
week
schedule.
An
operating
permit
for
the
modified
cupola
was issued by the City of Chicago on Septem-
ber
5,
1972 and on October
18,
1972,
the Appeal Board of the Chicago
Department of Environmental Control issued a finding that Respondent’s
operation was in
compliance
with
the
Chicago
Environmental
Control
Ordinance (Respondent’s Exhibit 2~. However,
the state of the record
does not enlighten us as
to what the requirements of the Chicago ordinance
are, what parameter Respondent was alleged to have violated and what
specifically,
so far as the Chicago ordinance is concerned,
Respondent
is in compliance with.
The
Agency’s case,
limited to the emissions from Respondent’s
Whiting
#6 gray
iron cupola,
is based upon computations involving the
amount of process material charged per hour and standard emission
factors related
to an uncontrolled cupola.
Based on a charge rate of
5.5 tons of metal per hour,
which figures were obtained from Respondent’s
superintendants
(E.P.A.
Exhibit
1) and standard emission factors of
17 pounds of particulates per ton of metal charged (Compilation of
Air Pollutant Emission Factors,
U.
S.
E.
P. A., Feb. 1972,
Compi. Ex.
3),
a total hourly emission of particulates of 93.5 pounds
is determined.
The allowable rate from the applicable rules based on the total charge
of all materials including metal, coke and limestone of
6.9 tons per
hour, would be approximately 20 pounds per hour
(R.
33).
Respondent’s
emissions,
accordingly, are approximately
4
to
5 times that of the
allowable limit.
This ratio is consistent with information furnished
by Respondent
in permit application made in January, 1972 by Respondent
for installation of
its afterburner where emissions of
42.4 pounds
per hour were stated against an allowable limit of
8 pounds per hour
based on a presumed process weight rate of 4,000
pounds per hour
(R. 36—39,
54).
The computations above specified were made on the assumption
that all emissions were uncontrolled while,
in fact,
an afterburner
has been installed.
However,
it
is agreed by all parties that the
afterburner
is effective only with respect to combustible particulate
emissions which, under no circumstances, would exceed over one-half
—2—
7
—
190
of the total emissions.
Accordingly,
even by the most favorable
assumption from Respondent’s point of view,
particulate emissions
continue at least double that permitted by the relevant regulations.
Complainant’s testimony bears out that abatement of non-combustible
particulates can be achieved only by utilization of fabric filters,
mechanical cyclones, wet scrubbers or comparable types of precipi—
tators, the technology
for which has been available for many years
(R.
78).
In summary, complainant has established a case of violation
from Respondent’s
#6 cupola, based on admitted charge rate and
applicable
emission
control
factors
which
demonstrate
a
violation
by
the
emission
of
particulates
at
least
double
that
permitted
by
the
relevant regulations.
Respondent has failed
to rebut this proof.
Nothing has been introduced to establish what the particulate
emission rates are under the Chicago ordinance.
The City Appeal
Board’s order of compliance does not demonstrate that State parti-
culate limits have been met nor does
the installation of the after-
burner and gas igniting system rebut the Agency’s proof of violation.
The system, while lessening emissions of combustible particulates and
cupola gases
such as carbon monoxide, does not resolve the particulate
problem.
We find the evidence adequate to establish violation of
the
Air
Pollution
Regulations,
as
alleged.
Respondent does not seriously contend that
it
is
now
in
compliance
with the applicable regulations but rather that it should be excused
from making the installation necessary
to bring it into compliance
because its facility is located in one of the possible paths of the
Crosstown Expressway.
Respondent argues that since the facilities
in which its operations are located might be acquired by condemnation,
it should not be obliged to make the extensive expenditures necessary
to bring
its operation into compliance with the law.
It argues that
if such compliance is
required,
it will in all probability cease its
operation at the present location, which will cause the unemployment
of its entire working crew and resulting hardship to all concerned.
We do not find the Respondent’s position meritorious on the record
of the present case.
First, the record
is devoid of any evidence as
to
what
the
costs
of
compliance
would
be.
There
is
some
speculation
that
the
necessary
abatement
equipment
would
cost
approximately
$150,000,
but
this
speculation
is
unsupported
by
any
tangible
evidence
as
to
what
the
“total
job”
of
pollution
control
would entail.
(R.
253).
The
most
that
is
suggested
is
that a study be made to determine the
extent
of
violation
and
the
nature
of
what control devices would be
necessary
(R.
261).
Notwithstanding Respondent’s
earlier skirmish
qith
the
City
of
Chicago,
it
does
not
appear
to
have
taken
any
stack
bests nor ascertained
the
extent
to
which
it
is
polluting
the
air,
either before or after the installation of its afterburners.
The
evidence indicates that Litton Industries,
Inc. has 145 business
—3—
7— 191
locations in the country
(R.
273),
including several in the Chicago
area.
Nothing appears in the record with respect to what efforts
could be made to accommodate Respondent’s employees
in the event of
a shutdown, which would be the case whether condemnation took place
or Respondent voluntarily ceased business.
Lastly, and perhaps of
greatest concern in endeavoring to resolve the present proceeding,
is
the
uncertainty
of
the
alignment
of
the
Crosstown
Expressway
and
whether,
in fact,
the Expressway will even be built.
Respondent
first
became
aware
of
the possibility that its facil-
ity was in the path of the
expressway
as
early
as
1968.
The Board
will take judicial notice of the fact that the proposed route of the
Crosstown Expressway has changed many times over the past five years,
and that substantial doubt exists whether it will be constructed at
all.
In
any
event,
this
Board
cannot
adopt
as
a
legal
principle
the
doctrine that all facilities within any of the possible routes
of
the
Crosstown
Expressway
are
exempt
from
compliance
with
the
Air
Pollution Regulations until the alignment is definitively resolved.
This subject has been a matter of contention for at least five years
and we cannot give dispensation to permit continuing violation of the
law based on the speculation inherent in the present case.
This is
particularly true in consideration of the facts before the Board in
this proceeding where the nature and extent of the emissions,
the equip-
ment necessary to achieve compliance, the cost of abatement equipment
and the date of acquisition by the condemning authority, are all
unknown.
Furthermore, we are not unmindful that if abatement equipment
is installed and the facilities acquired by a condemning authority,
consideration must be given to the expenditures
so made when an award
for the acquisition is determined.
Tax relief
is also available for
such installation.
On the state of the record, we will not allow exemption of Res-
pondent from compliance with the law.
Such a rule would be available
to all industries and operations
located within any of the various
expressway routes heretofore considered, which would have the dual
effect of giving all of these industries an undue economic advantage
and at the same time,
allow unabated pollution from a substantial
area of Chicago, pending the resolution of an issue which,
at the
present time,
seems unlikely to be resolved in the foreseeable future.
We find Respondent to have violated Rule 2—2.54 and assess a penalty
in the amount of $2,500 for said violation.
This penalty
is asserted
principally in consideration of Respondent’s failure to take affirma-
tive steps in the face of its acknowledged awareness of violation of
the relevant Rules.
We find the violations
to have continued from
July
1,
1970 to the date of the hearing.
We
will
order
Respondent
to
submit
a
program
for
control
of
its
pollutional discharge within
60 days from the date hereof, and to
—4—
7
—
192
From the foregoing urovisions,
the following rules may be
discerned.
First, odor
is
a contaminant;
second,
odors that un-
reasonably interfere with the enjoyment of life or uroperty consti-
tute air pollution;
and third, air pollution is prohibited whether
caused
by
odors emanating from one source alone or whether multiple
sources
in combination create this
result.
The difficulty
in estab-
lishing
a violation of the Act in areas characterized
by
a
rnultipli-
city of odor—generating facilities
is demonstrated by the varying
and
comoeting odors
that may all affect one receiver simultaneously.
A frequently raised contention
is
that
a certain amount of latitude
must be recognized
in every
industrial area with respect to odor
emissions,
and persons
who
reside near such areas are compelled to
share
this
ourc1en.
In
cases of this character,
the
Board does not adopt
the view
that
an
absolute
orohibition
of
odor
emission
is
directed
by
statutory
mandate.
of
necessity,
it
must
take
a
stance
that
only
those
odors
which
unreasonably
interfere
with
the
enjoyment
of
life
are proscribed.
This,
in
turn,
becomes
a
function
of
many
considera-
tions
and requires an analysis of the degree of impact on the indivi-
duals
comprising
the
community resulting from the odor emissions
and the
eco:tonic
reasonableness
and,
technical
feasibility
of
odor
abatement.
While
the
evidence
in
the
instant
case
is
somewhat
conflicting
in this resoect,
we
believe
the
Agency
has
established
its
burden
which
has
not
been
rebutted
by
testimony
of
Respondent.
The
fact
that
some
of
the
witnesses
affected
are
not
permanent
residents
of
the
area
does not militate against
this
conclusion.
Since
what
annoys
a
per-
son
or
unreasonably
interferes with his enjoyment of life is, by
definition, highly subjective,
it is not surprising that the same
odor
may
be obnoxious
to one person, while at the same time
a subject
of
indifference
or
perhaps
even
enjoyment,
to
another.
Likewise,
persons
who
have
been
subjected.
to
continuing
emissions
over
a
substantial
period of time may have developed a tolerance,
consciously
or unconsciously, which would not be characteristic of a person who
is
either transient or unrelated to the activities of the area,
giving
rise
to
the odors.
Testimony of
-three residents
of Sauget and four students from
Parks
Air
College
in
Cahokia
supported
the
contentions
that
the
emissions comolained
of were traceable to Respondent’s plant,
caused
severe
discomfort,
difficulty
in
breathing,
preclusion
of
outdoor
activities
and
in
some
instances,
interfered
with
sleep.
Yir.
Tracy,
who
lives
one
block
south
of
the
plant,
complained
of
the
rubber
smell
stating
“It
stinks.
I
have
been
woke
up
in
the
middle
of
the
night
with
the
bedroom
windows
open
and
I
would
get
up
and
close them.
I’d get to coughing”.
(R.26)
.
He
testified
that
he
could
not
plan
family
barbeques
or
the
use
of
the
yard.
“I
have
barbequed
in
my
yard
before
and
I
stopped
barbequing
when
the
stuff
moved in
-—
we had to go into the house and close
the house up.”
(R.
36).
The odors were noticed. in 1971 and 1972.
Mrs. Phillips who
-5-
7
—
201
lives two blocks north of the plant has lived at this
location for
eleven years
(R.
46)
.
She
testified that during 1971 and
1972,
she smelled an odor comparable to burnt rubber.
When the
rubber
odor was observed, she felt nauseoUs,freauently requiring the closing
of windows.
William Schmidt lives approximately 450 yards southeast
of the plant.
During 1971 and 1972, he detected odors comparable
to
“an inner tube on fire”, which odor was observed as recently as
November 14,
1972.
He testified that he observed the rubber smell at
least once a week over
the
last
two years
(R.
76)
.
Students at
Parks
Air
College
(R.
101
and
following)
testified
that
the
emission
of odors traceable to
the
plant
interfered
with
the ability
to engage
in
outdoor athletics
(R.
104),
interfered with
the ability
to
study,
ruined appetite
(H.
105) and jnterfered with sleer.
~iike
Sandeil
testified to an odor characterized as
“the smell of
hot,
burning
rubber”(R.
123),
observed on October 18,
1972 and that comnarahie
odors
have been observed as frequently
as
7 or
8 times
a month.
He testified that the odor created a feeling of denression interfering
with appetite and interfered with school activities
(H.
125)
Thomas Zuchowski testified that there were three weeks during
the
period of 1971 and 1972 when the smell of burnt rubber could be
detected.
He traced the odor directly to Respondent’s plant
(H.
135)
He testified that the odors interfered with the conduct of athletic
activities and his ability
to sleep.
(H.
136,
142)
.
The statute
does not require that sickness,
infirmity or permanent injury result
from odor emissions.
It
is the very activities from which
these
witnesses were foreclosed that constitute the unreasonable interference
with the enjoyment of life,
nor does the absence of multiple witnesses
testifying
to the same matters negate a demonstration of violation.
Most witnesses introduced by Respondent acknowledged the presence
of odors emanating from Respondent’s plant on occasion.
However,
they disagreed as to its intensity and impact.
We believe the Agency has adequately established its burden
in
proving that Respondent has caused air pollution.
The remaining c~ues~
tion
is what should be done about
it.
Respondent is embarking on a major replacement nrogram
which
will
entail the installation of new process equipment.
While this equip-
ment is not being installed primarily to achieve odor abatement,
the
record strongly suggests that when this renovation program has been
implemented, many of the present sources of odor emissions will be
eliminated.
The program anticipates investment
For equipment of anoroximately
$270,000 and an additional annual operating exoense of aoproximately
$70,000
(H. November 29,
1972,
R.
148—149)
.
The program includes
the elimination of the Sargeant dryers presently used
and
their
replacement with a steam—heated conveyor which would lessen
the
air
flow from the dryers and eliminate odors such dryers
might
produce
by scrubbing the conveyor air before
its release.
The
installation
of a second dynamic Devuicanizer would eliminate 10
wet
diqesters
as odor sources and replace the existing air conveying system used
to cool and transport hot rubber stock from
the
devulcanizer
to
storaqc
—6—
7
—
202
bins
with
a
water-cooled
conveying
system.
According
to
Respondent,
the
new system would eliminate the escape of small traces of oil into
-the atmosphere and end whatever resulting odors such oil traces might
produce.
The Company anticipates
that it would require ten months
from
the
receipt
of necessary installation and operating permits for
the
program
to
be
completed
and
in
operation.
At
the
present
time,
the
necessary
permits
for
this
program
have
not
been
received,
partly
as
a
consequence
of
the
Agency’s
con-
cern
that
the
program,
as
proposed,
would
not
satisfy
the
provisions
of
Rule
205(b)
of
the
Board’s
new
Air
Pollution
Rules
with respect to
the
emission
of
organic
materials.
This
matter
is
not
directly
in
issue
in
the
present
case
and.
nothing
appears
in
the
record
other
than
the
statement
of
an
Agency
witness
that
this
concern
has
precluded
the
issuance
of
necessary
permits
(IR.
194)
.
We
trust
that
this
matter
will
be
the
subject
of
further
discussion
between
the
parties
and
urge
that
the
Agency
fully
aeprise
the
Respondent
as
to
the
exact
nature
of
its
concern
in this
respect.
Rather
than
direct
the
submission
of a definitive program
for
odor
abatement
as
we
have
done
in
other
cases,
(see
Environmental
Protection
Agency
v.
Tee
Pak,
Inc.,
#72-81,
(November
8,
1972)
PCB
;
Environ-
i~i~tal Protection
Agency
v.
Union
Carbide
Corporation,
#72-54
(
)
~PCB
;
Environmental
Protection
Agency
v.
Mystik
Tape,
A
Division
of
Borden,
Inc.,
#72-180
(January
16,
1973)
PCB
,
we
will
direct
the
parties
to
take
immediate
steps
to
effectuate
the
improvement
and
replacement
program
above
described.
It
would
appear
from
the
record
that
the
modification
and
installation
of
new
process
equipment
will
go
far
to
alleviate
the
odor
condition
that
has
characterized
the
opera-
tion
to
the
present date.
We
find
-that
Respondent
has
made
installation
of
air
pollution
abate-
ment
equinment
without
the
necessary
permit
in
violation
of
Section
9(b)
of
the
7~ct and
Rule
3-2.100
of
the
Rules.
We
find
that
Respondent’s
operation
of
its
rubber
reclaiming
facility
has
emitted
odors
which
have
caused
air
pollution
as
defined
in
the
Act
between
January
1,
1970
and
the commencement
of
hearings.
We
assess
a
penalty
in
the
amount
of
$2,000
for
the
violations
aforesaid.
We
direct
the
parties
to
take
immediate
and
definitive
steps
to
process
the
permits
necessary
to
effec-
tuate
the
improvement program described herein and direct the Agency
to
report
back
to
the
Board
within
60
days
from
the
date
hereof
the
status
of
the
permit
applications,
together
with
its
analysis
of
whether
the
odor
emissions
existing
Will
be
substantially
abated
as
a
conse-
quence
of
-the
improvement
program
anticipated.
We
shall
reserve
juris-
diction
of
this
matter
for
such
other
and
further
orders
as
may
be
necessary
in
consideration
of
the
foregoing.
This
opinion
constitutes
the
findings
of fact and conclusions of
law
of
the
Board.
-7=
7
—
203
IT
IS
THE
ORDER
of the Pollution Control
Board:
1.
Penalty in
the
amount of $2,000
is assessed against
Midwest
Rubber
Reclaiming
Company
for
violations
of
Sections
9(a)
and
9(b)
of
the
Environmental
Protection
Act
and
Rule
3—2.100
of
the
Rules,
in
the
causing
of
air
pollution
and
the
installation
of
a
Mikro-Pulsaire
collector
without
a
permit,
as
found
herein.
Penalty
shall
be
paid
by
certified
check
or
money
order
nayable
to
the
State
of
Illinois
and
sent
to:
Fiscal
Services
Division,
Illinois Environmental Protection Agency,
2200 Churchill Drive,
Springfield,
Illinois
62706.
2.
The
Agency
and
the
Respondent
shall
take
immediate
steps
to
process
the
permit
applications
with
respect
to
Respondent’s
improvement and replacement program
as
delineated
in
this
Opinion.
The
Agency
shall
report
to
the
Board
within
60
days
from
the
date
hereof,
the
status of the permit application and whether
such imnrove-
ments will abate the odor nuisance found to exist.
3.
The
Board
retains
jurisdiction
for
such
other
and
further
orders
as
may
be
necessary
including
the
possible entry
of
a cease and desist order with respect
to
the
causing
of
odor
nuisance,
the
direction
to
submit
an
odor
abate-
ment
program
should
such
further
order
apoear
necessary
and
the
entry
of
a
bond
•to
assure
compliance
with
all
programs,
either
permitted
or
directed
to
abate
odor
emissions.
I, Christan Moffett, Clerk of the
Illinois
Pollution
Control
Board,
certify that the ~bove
Opinion and Order was adopted on the
~
day of
?‘Y’~
~
,
1973, by a vote of
~
to
~
/1)
—8—
7
—
20~