ILLINOIS POLLUTION CONTROL BOARD
June
15, 1973
ENVIRONMENTAL PROTECTION AGENCY
)
#72-217
V.
PARK
MANUFACTURING
COMPANY
)
RICHARD
14.
BANER,
ASSISTANT
ATTORNEY
GENERAL,
APPEARED
ON
BEHALF OF ENVIRONMENTAL PROTECTION AGENCY
THOMAS
14,
McMAHON and THOMAS N. RUSSELL, OF SIDLEY
& AUSTIN,
APPEARED ON
BEHALF
OF
PARK
MANUFACTURING
COMPANY
OPINION
AND ORDER OF THE BOARD
(BY SAMUEL T.
LAWTON,
JR.):
Complaint
was filed against Park Manufacturing Company, located
in Grant Park, Kankakee County,
alleging that Respondent,
in the
operation
of
its
plant,
emitted
odors
causing
air
pollution,
in
violation
of
Section
9(a)
of
the
Environmental
Protection
Act,
and
burned
refuse
in
the open, violating Section 9(c)
of the Act and
Rule 2-1.2 of the Rules and Regulations Governing the Control of
Air Pollution.
The violations are alleged to have occurred between
July 1,
1970 and the filing of the complaint, May 22,
1972.
Notwithstanding the length of the transcript,
the facts and
issues of the case are relatively simple.
Respondent~soperation
is conducted in two plants; a plastic plant located on the
east
side of Main Street
and
the Eastern
Illinois
Railroad,
and
the
box plant, located on the west side of Main Street.
The box plant
operation is the principal source of the
complaints
charged
in
this
proceeding.
The
open burning allegations are the
eas:~est
to
dispose
of~ Experiencing difficulty in obtaining the requisite permits for
the operation of an
incinerator
to
dispose
of
its paint iilter~
Respondent utilized a “burning box”.
This burning was observed
by an Environmental Protection Agency employee on August 10,
197:L
and the photograph taken
(Ex.
1)
,
(Pt.
394)
In. addition,
Respondent acknowledges that this method was resorted to on other
occasions
~
286,403
)
Alleged
justification
for
this
admitted
violation cf the law is
that
the
filters
burned
were
subject to
spontaneous combustion and failure to make irr~ediatedisposal would
create dan.qer of fires and resulting loss of proDerty.
WhiLe we are not unsympathetic to this contention,
we
do
not.
believe
the
Respondent
is justified in ignoring the law when
means
of remedy are avai:Lahle
to
it~
This Board has granted many variancan
to
enable
the
open
burning
of
explosive
waste
when
flQ
alternative
means
appeared
satFsfactory.See
Olin
Corporation
v.
Environmental
Protection Agency, #71-371
(February
17, 1972),3 PCB 667; Olin
Corporation v. Environmental Protection Agency,
#72-281 (Septem-
ber 26,
1972)
5 PCB 507.
This method was available to Respon-
dent and should have been resorted to if the need for variance
from the open burning requirements was as urgent as Respondent
suggests.
We assess a penalty in the
amount
of $500 for the
open burning violatiorE aforesaid.
The allegations with respect to air pollution resulting from
the odorous emissions of Respondent’s box facility, present a
more difficult question for resolution.
Respondent’s box painting
operation embraces
four
facilities,
a wet booth using a water
curtain,
electrostatic painting employing mechanical filters,
dipping and baking.
Emissions from all of these operations are
exhausted through roof vents by the use of fans
and
no abatement
equipment is employed other than that mentioned.
As we have held
in other cases involving allegations of air pollution resulting
from odor emissions, the determination of this question is one of
subjective impact and not objective measurement.
See Mystik Tape,
a Division of Borden Inc., a New Jersey Corporation v. Environmental
Protection Agenc~#72-180
(January 16, 1973)
PCB
;
Environmental
Protection Agency
v.
Midwest Rubber Reclaiming Co., #72-318
(March 18,
1973)
PCB
;
Environmental Protection Agency v. Ashland Chem-
ical Company, et a?, #72-188
(April 12, 1973)
PCB
We have previously held that odor emissions constitute contain-
inants which if, of a sufficient intensity to cause interference
with the enjoyment of life, result in air pollution as defined in
the statute.
Where the facility in question represents a significant
element in the community’s economic well-being, we have found an
understandable tendency on the part of the citizens to tolerate odors
that otherwise might be obnoxious and have serious nuisance attri-
butes.
The present case is an excellent example.
Here we have the
testimony of the Bangemann family, representing three generations,
all testifying to the impact of the Respondent’s emissi6ns upon
their health and well-being.
Dennis Bangemann testified that the
Respondent’s operation produced odors and a burning sensation in
his
lungs
during the periods of his visits since July, 1970
(R.
89).
Mercia Fiore,
a daughter, testified that the strong paint odor
burned
her
lungs
and
made
her
eyes~ore
during
the
same
period.
She
testified
that
the
odor
emissions
precluded
the use of the
family
yard.
Erwin Bangamann
(R.
36)
testified that the emissions
occur
every
time
painting
takes
place
in
the
plant.
His home is
located
approximately
100
feet
north
of
the
box
plant
and
the
odors are particularly prevalent
when
the wind blows from the south.
He complains of a sore throat, burning eyes, tearing, and the in-
ability to sleep.
He testified that other members of the family
experienced the same sensations.
He further testified that he had
—2—
8
—
304
observed visual emissions from the vent stacks on the top of
the
box plant during the times when the odors were particularly preva-
lent during the years 1970, 1971 and 1972
(R.
173)
.
The fumes
were described as being comparable to ammonia or lacquer
(R.
177).
Vivian Lamore
(R.
195), whose home is across the alley and
slightly south of the box plant, testified that the odor emissions
from the plant caused her to vomit
(R.
204)
and interfered with
the use of her yard during the period of the alleged complaints.
Witnesses introduced by Respondent understandably acknowledged
that odors emanated from Respondent’s box plant but differed
with respect to the subjective impact on them and their families
and their capability of conducting business or enjoying outdoor
activities.
Most indicated that while they were aware of the
odor,
it did not represent a nuisance or interference with their
enjoyment of life.
On the state of the record, we can accept as truthful
the statements of all witnesses.
It should be noticed that
the Bangemann home is the closest to the box plant.
The
impact on this property would,
of necessity, be greater than on
those remote from the plant.
Even the difference
of a block or two
could make a significant difference in the ability to discern the
odors and their subjective impact.
Witnesses who use the bank and
the post
office immediately south of the box plant observe that
the odors were particularly prevalent in these locations.
The case presents difficulties frequently encountered in
endeavoring to resolve an odor emission nuisance complaint.
The
law does not require that in order for an odor nuisance to be es-
tablished, everyone in the community must suffer.
It
is also
obvious that where the economy and well-being of a municipality
is at least, in part, dependent on the continuing operation of a
particular facility,
those whose livelihoods are dependent
on or affected by the operation would possess a higher degree of
tolerance toward the odor impact than those who might not have
the same attitude toward the industry involved.
Again, irrespec-
tive of feelings toward the alleged offender, those who are the
closest physically, will suffer the most.
We believe the record is sufficient to sustain the Agency’s
position that the emissions from Respondent’s plant have caused
air pollution in violation of Section 9(a)
of the Act.
The testi-
mony of the Bangemann family, particularly with respect to the
impact of the odor emissions on their health and comfort,
is
significant and unrebutted.
The case is all the easier to decide
because of the lack of any abatement equipment used by the Company
to
minimize or eliminate the odors generated, nor has Respondent
placed the capability of abatement in issue.
On the contrary,
it
has resisted the Agency’s efforts to demonstrate that odors of the
character present in the instant case could be abated by available
—3—
8—
305
technology.
Cf.
C.
M.
Ford v. Environmental Protection Agency,
App.
Court, 2rd District,
#72-60.
For violation of Sec.
9(a)
of the Act by causing air pollution,
we
will
assess
a
relatively
modest
penalty
in
the
amount
of
$~.000
and
direct
that
Respondent,
within
six
months
from
the
date
of
this
Order, abate its odor emissions to the extent that they constitute
a violation of Section 9(a)
in the causing of air pollution.
This opinion constitutes the findings of fact and conclu-
sions of law of the Board.
IT IS THE ORDER of the Pollution Control Board:
1.
Penalty in the amount of $1,300 is assessed against
Park Manufacturing Company, of wh~ich$500 is assessed
for violation of the prohibition against open burning
set forth in Section 9(c)
of the Environmental Protection
Act and Rule
2-1.2 of the Rules and Regulations Governing
the Control of Air Pollution
,
as found in this Opinion
and Order, and of which $1000 is assessed for thc~~rni:s~ic1n
of odors causing air pollution,
in violation of Section
9(a) of the Act between July
1,
1970 and May 22,
1972,
the
date of the filing of the original complaint herein.
Penalty payment shall be made by certified check or
money
order
payable
to
the
State
of
Illinois,
within
30
days
from
the
date
of
this
Order
and
sent
to:
Fiscal
Services
Division,
Environmental
Protection
Agency,
2200
Churchill
Drive,
Springfield,
Illinois
62706,
2.
Within six months from the date hereof, Respondent shall
cease and desist the emission of paint odors from its
box manufacturing facility so as to cause air pollution
as found herein.
An abatement program shall be submitted
to the Agency within 90 days
from
the date hereof setting
forth the procedures to be employed
to
achieve
this result.
I,
Christan Mcifett,
Clerk of the Pollution Control Board, certify
that the above Opinion and Order was adopted on the I~4~dayof
June,
1973,
by a vote
of
~
to
8
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306