ILLINOIS POLLUTION CONTROL BOARD

March

8,

1973

ENVIRONMENTAL PROTECTION AGENCY

)

#72-318

v.

MIDWEST

RUBBER

RECLAIMING

COMPANY

THOMAS

A.

CENGEL,

ASST.

ATTORNEY

GENERAL,

APPEARED

ON

BEHALF

OF

ENVIRONMENTAL

PROTECTION

AGENCY

ROBERT

L.

BRODERICK

OF

POPE

&

DRIEMEYER,

APPEARED

ON

BEHALF

OF

RESPONDENT

OPINION

AND

ORDER

OF

THE

BOARD

(BY

SAMUEL

T.

LAWTON,

JR.):

Comnlaint

was

filed

by

the

Agency

against

Midwest

Rubber

Reclaiming

Company

located

in

Sauget

and

Cahokia,

alleging

that

between

July

1,

1970

and

the

close of

tIie record

in

this

proceeding,

Respondent,

in

the

operation

of

its

rubber

reclaiming

plant,

allowed

the

emission

of

odors

and

other

contaminants

into

the

atmosphere,

either

alone

or

in

combin-

ation with

contaminants

from

other

sources,

so

as

to

cause

air

pollu-

tion,

in

violation

of Section

9(a)

of the Environmental Protection Act.

The

comnlaint

further

alleges

that on or about November

1,

1971,

Respondent installed

a Mikro-Pulsaire bag collector without

obtaining

an installation permit,

in violation

of

Section

9(b)

of

the

Act

and

Rule

3-2.100 of

the Rules and Regulations Governing

the Control

of Air

Pollution.

The entry of

a cease and desist order,

penalties

in

the

maximum statutory amount, and such further relief as the Board deems

aporopriate, are sought.

We

have previously held that we will not

consider violations occurring after

the

start of the hearings, without

specification of the alleged offense.

See Environmental Protection

~ency

v. Mystik Tape,

A Division of Borden,

Inc.,

#72-180

(January 16,

1973)

PCB

AnSwer filed by Resr,ondent admits the ownership and operation of

the rubber reclaiming plant at the location alleged, and admits

the

installation of

a Mikro-Pulsaire collector in August of 1971

without obtalning an installation permit,

but alleges that this in-

stallation was

in replacement of

a similar collector for which no

nermit had been required by

the

Air

Pollution

Control

Board

and

that

the

new installation was made in the helief that no permit would

he necessary.

The answer denies the remaining material allegations

of the complaint.

The

answer also asserts various legal arguments

in

defense including the inadequacy of the complaint on the basis

of vagueness,

that the imposition of

a penalty by the Board would

violate

the

Illinois and United States Constitutions,

that the

absence of objective standards for an odor violation is

a depriva-

tion of constitutional guarantees and that

the

only

provisions

in

the

7

—

197

---

Regulations which relate to odors and which are controlling in the

instant case are Rules 801 and 802 of Part VIII of the Air Pollu-

tion Regulations, violation of which has not been alleged nor

proven.

The same contentions were raised by Respondent in its

motions

to dismiss before hearing and to dismiss at the close of the

evidence.

Hearings were held

in East St. Louis on November 17,

1972 and in Sauget on November 29,

1972.

Briefs were filed

by both parties.

We deny both motions to dismiss.

We find

that the Agency has

met its burden of proof and established that

the

emissions of odors

from Respondent’s plant cause air pollution as defined in the Act and

violate Section 9(a)

of the Act.

We find that Respondentts installa-

tion of the Mikro-Pulsaire collector without an installation permit

violates Section 9(b)

of the Act and Rule 3—2.100 of

the Rules and

Regulations Governing

the

Control of Air Pollution.

We find the

legal contentions raised by Respondent with respect to procedural

and constitutional infirmities of the complaint and proceeding

lacking in merit.

All contentions made with respect to vagueness

of pleading and provisions of the Act, delegation

of power to im-

pose penalties,

the need

for objective standards

to

establish 9(a)

violations and the lack of capability of proving air pollution by

subjective evidence have been answered contrary to Resoondent’s con-

tentions

in previous cases decided by the Appellate Court of

Illinois and this Board.

See Environmental Protection Agency

v.

C.

M.

Ford, Appellate Court, Third District,

#72-60

(February

4,

1973);

Environmental Protection Agency v. Granite City Steel

Company, #70-34

(March 17,

1971)

1 PCB 315;

Modern Platingv.

Environmental Protection Agency, ##70-38,7l-6

(May

3,

1971,) 1 PCB

531; and Environmental Protection Agency v. Commonwealth Edison

Company,

#70—4

(February 17,

1971,) 1 PCB 207.

These legal

issues

have been discussed in substantial detail in the foregoing cases

and need not be reiterated

in this Opinion.

We take special note,

however,

of Respondent’s contention that

only §~8Oland 802 of the Air Pollution Regulations can be resorted

to in a complaint alleging air pollution as

a consequence

of

odor

emissions.

A reading of the Regulations clearly discloses

that

these sections are applicable only to inedible rendering plants.

The sections were originally adopted by the Air Pollution Control

Board in the Rules and Regulations Governing the Control of Air

Pollution.

See Definitions and Rule

3-3.280.

These rules remain

in force and effect pursuant to Section 49(c)

of the Environmental

Protection Act.

The sections contained in present Rules

801 and

802 are verbatim the old Rules of the Air Pollution Control Board

and codified in their present form without change in language.

Accordingly,

there

is no merit to the contention that procedures

provided in Rules

801 and 802 must be resorted to in order to

establish a Section 9(a)

violation premised on the causing of air

pollution as defined.

Unreasonable interference with the enjoyment

—2—

7

—

198

---

of life can only be evidenced by those affected

and of necessity,

the

determination

must

be subjective.

Any other rule would

nullify

the

ability

of

the

Board

to

make

a determination as

to

the

existence

of

air

pollution

as

the

term

is

defined

in

the

Act.

See Environmental Protection Agency

v.

Granite City,

Supra; Environ-

mental Protection Agency v. Mystik Tape, A Division of Borden,

Inc.,

#72-180

(January 16,

1973)

PCB

;

Environmental Protection

Agency v.

Kaluzny Bros.,

Inc.,

a corporation,

#72—160

(February 14,

11.973)

PCB

,

Supra.

Respondent’s

plant

is

located

in

a highly developed indus-

trial area.

Contiguous

to Respondent

are the Darling Fertilizer

Company

and

facilities

of

Cerro

Copper

and

Brass

Company.

Monsanto’s

Krummrich

plant

is located immediately north of

the Cerro plant.

North

of

the

Monsanto

complex

are

facilities

of

American

Metal

Climax Company

and Edwin M. Cooper Co.

In the vicinity of Respon-

dent’s

operation

are

the

refineries

of

Mobile

Oil

Company,

the

tank

farm of Phillips Pipeline Company and the plants of Sterling Steel

Castings

Company

and

Moss

Electric

Company.

The

Cahokia

Power

Station

of

Union

Electric

Company,

the

Sauget

Waste

Treatment

Plant

and the railyards of

the Illinois Gulf Central Railroad Company are

in close proximity.

The residential

area of Cahozia

is generally

south of

the plant

as

in Parks Air College.

(R.

11/29/72,

pp.

127-137;

Respondent’s X

8,

9,

10,

11 and 12)

Midwest’s operation at its present location commenced in 1928.

The Company presently employs 275 persons with an annual payroll

and benefit costs of approximately $3,500,000.

The Company is

engaged

in the recycling,

reclaiming and converting of

scrap

rubber into reusable material.

The reclaiming process consists of

grinding scrap rubber, principally old automobile

tires, transfer-

ring the ground rubber particles from an elastic to

a plastic state

by

a chemical process called devulcanization, and milling the plastic

material into cohesive sheets

(R. 11/29/72,

pp. 141—142)

.

The de-

vulcanization step consists of cooking the ground scrap in large

tanks or devulcanizers under pressure with chemicals added.

Three

types of devulcanizers are used:

dry, dynamic and wet.

The dry

devulcanizer differs from the dynamic in that the scrap rubber in

the dry is not agitated during the heating cycle.

The wet type

requires the introduction of water into the scrap rubber and chemi-

cals to form

a slurry.

The dynamic method requires less time to

devulcanize

the

scrap.

The advantages

of the dynamic and dry over

the

wet

are

that

less

time

is

required

to

devulcanize

and

the

elimination of dewatering

of the scrap after devulcanization.

At

the present time,

Respondent’s plant

has one dynamic devulcanizer,

four

dry

devulcanizers,

and

16

wet

devulcanizers.

The

released

pressure from

the

three types of devulcanizing referred to as

“blow—down”

passes through water scrubbers prior

to emission

from stacks.

None of

these water scrubbers

has

been

—3—

7

—

199

---

tested for efficiency of removal.

The third step in Respondent’s

reclaiming process is milling.

This step of the process prepares

the

reclaimed

rubber

for

distribution

by

rolling

the

reclaimed

rubber into sheets.

Anproximately 20,000 tons of scrap rubber

are

recycled

each

year

in

the

manner

described.

Prior

to

1965,

Respondent

burned

the

rubber

that

adhered

to

the

wire

present

in

tires.

The

burning

process

ceased

in

that

year,

and

the

residual

material

was

hauled

away.

In

1969,

rotoclones

using

centrifugal

fans

for

the

scrubbing

of

air,

were

installed

to

abate

odors.

Later

in

the

same

year,

a

scrubbing

system

on

the

“blow

downs”

on

heaters

was

installed.

In

1971,

a

Venturi

water

scrubbing

systems

on

its

dynamic

vulcanizer

and

the

digester

dischargers

were

installed.

Operating

cost

for

this

equipment is stated to be $40,000 annually.

Respondent

admits

the

installation

of

the

flikro-Pulsaire

collector,

unquestionably

new

equipment

designed

to

control

the

emission

of

air

contaminants,

without

a

permit

(R.

158).

The

contention

that it did so believing that it was in replacement of a facility

for which no permit was needed is not pursuasive.

Respondent’s

position is premised on the alleged approval by the Air Pollution

Control

Board

of

a

Letter

of

Intent

submitted

by

the

Company to

the

Board

in

1967.

Nothing

contained

in

this

document

or

any

action

by

the

Board

suggests

the

waiver

of

a

permit

requirement

(R.

184).

There

is

no

dispute

that

the

Zdikro-Pulsaire

collector

is

new

equip-

ment

intended

for

the

controlling

of

air

contaminants

for

which

the

obtaining

of

a

permit

is

mandatory

under

both Section 3-2.100

of the Rules

and

Regulations

Governing

the

Control

of

Air

Pollution

and

Section

9(b)

of

the

Act.

We

find

these

provisions

have

been

violated

by

the

installation

so

made.

See

EPA

v. Kaluzny Bros.,Inc.472-l60,Suora).

The determination of violation of Section 9(a) with respect to

the

causing

of

air

pollution

presents

a

more

difficult

issue.

As

is

characteristic

of

many

areas

within

the

State,

Respondent’s

facili-

ty

is

part

of

a

highly-developed

industrial

complex.

Some

omission

of

odors

from

such

an

area

is

inherent

in

the

operations

being

conducted.

At

the

present

time,

with

the

exception

of

inedible

rendering

plants,

no

objective

standards

for

the

determination

of

odor

violation

are

provided

in

the

Regulations.

Under

the

Environ-

mental

Protection

Act,

“contaminant”

is

defined,

among

other

things,

as

“any

odor...from

whatever

source”.

Air

pollution

is

defined

as

“the presence in the atmosphere of one or more contaminants in suffi-

cient quantities

and

of such characteristics and duration as to be

injurious to

human,

plant or animal life,

to health or to property,

or to unreasonable interference with the enjoyment of life or oroperty”.

Section 9(a) of the Act states that:

“No

person

shall

cause or threaten or allow the discharge or

emission of any contaminant into the environment in any state

so as to cause or tend to cause air pollution in Illinois, either

alone

or

in

combination

with

contaminants

from

other

sources,

or

so

as

to

violate

regulations

or

standards

adopted

by

the

Board

under

this

Act.”

7—200

---

cease

and

desist

all

violation

of

said

Rule

within

120

days

from

the

date

hereof,

pursuant

to

the

installation

of

such

equipment

as

will

be

necessary

to

achieve

this

result

and

the

acquisition

of

the

requisite permits from the Agency.

We are aware that some

amount

of

hardship

may

result

as

a consequence of our Order but

believe

that

the

hardship

on

the

community

from

unabated

pollutional

discharges,

particularly

if

multiplied

by

the

number

of

industries

that

would

seek

to

be

exempt

on

the

theory

advanced

by

Respondent,

would

be

far

greater.

This

opinion

constitutes

the

findings

of

fact

and

conclusions

of

law

of

the

Board.

IT

IS

THE

ORDER

of

the

Pollution

Control

Board:

1.

Penalty

in

the

amount

of

$2,500

is

assessed

against

Respondent

for

violation

of

Rule

2-2.54

of

the

Rules

and

Regulations

Governing

the

Control

of

Air

Pollution,

between

July

1,

1970

and

December

18,

1972,

the

date

of

the

hearing

herein.

Penalty

payment

by

certified

check

or

money

order

payable

to

the

State

of

Illinois

shall.

made

to:

Fiscal

Services

Division,

Illinois

Environmental

Protection

Agency,

2200

Churchill

Drive,

Springfield,

Illinois

62706.

2.

Within

60

days

from

the

date

hereof,

Respondent

shall

submit

a

program

for

control

of

its

pollutional

discharge,

and

within

120

days

from

the

date

hereof,

Respondent

shall

cease

and

desist

its

pollutional

discharges

in

violation

of

the

Rules

and

Regulations Governing the Control of Air

Pollution

and

shall

obtain

the

necessary

permits

for

the

required installations from the ~‘nvironmental Protection

Agency.

I,

Christan Moffett,

Clerk of the

Illinois

Pollution

Control

Board,

certify

that

the

above

Opinion

and

Order

was

adopted

on

the

~1

day

of

March,

1973,

by

a

vote

of

3

to

~

—5—

7

1fl~

---