ILLINOIS POLLUTION CONTROL BOARD
August 1, 1972
ENVIRONMENTAL PROTECTION AGENCY
)
#72-70
V.
SOUTH WEST REGIONAL PORT DISTRICT
)
MR. ROBERT F. KAUCHER, APPEARED ON BEHALF OF ENVIRONMENTAL
PROTECTION AGENCY
MR. HAROLD G.
BAKER,
JR. OF WAGNER,
CONNER, FERGUSON, BERTRAND &
BAKER,
APPEARED
ON BEHALF OF RESPONDENT
OPINION
AND
ORDER OF THE BOARD
(BY SAMUEL T. LAWTON,
JR.):
Complaint was filed against South West Regional Port District
by the Environmental Protection Agency alleging that from July
1,
1970
to the date of the filing of the complaint, including but not
limited to January
20,
1971, February
1,
1971 and March
3,
1971,
Respondent caused, threatened or allowed the discharge or emission
of contaminants,
including red aluminum by-product dust,
into the
environment from property owned or controlled by Respondent so
as
to cause,
or tend to cause, air pollution in violation of Section
9(a)
of the Environmental Protection Act.
The South West Regional Port District located in East St. Louis,
Illinois, received by gift from the Alcoa Company, approximately
240 acres of land on which Alcoa had, since 1906, deposited
aluminum
tailings, which tailings were the residue from the manufacturing of
alumina, the product used in the manufacturing of aluminum,
Approx-
imately 14,500,000
tons of this refuse had been deposited on the
subject property prior to its acquisition by Respondent.
The tail-
ings had been deposited in water-filled depressions referred to as
lakes and during the operation by Alcoa, appears to have been watered
down by piping facilities installed by Alcoa.
Subsequent to the acquisition by Respondent
in 1961 and later,
(additional portions having been obtained following the initial
acquisition), the watering procedure terminated although the de-
pressions continue to hold water resulting from rainfall.
The area
holding the tailings is diked by a wall of gypsum and during most
periods of the year sufficient water is present to minimize dust
problems arising from the slag pile so formed.
No additional tailings
r slag havebeen added by Respondent since its acquisition in the
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early 1960’s,
However,
in times of drought and high wind,
fine
dust blows from the slag pile into the adjacent areas, creating
substantial conditions of nuisance which,
to date, have been un-
abated.
That air pollution,
as defined in the statute, has been
created by this situation is abundantly clear from the record,
nor is this conclusion challenged by Respondent.
Testimony of neighborhood witnesses manifest that during
periods of dryness coupled with heavy wind,
dust covers their
homes, laundry and automobiles.
Several witnesses testified that
their health has been impaired as a consequence of inhaling the
dust so generated and that their hair and skin have become
inordinately dirty as
a consequence.
While the evidence indicates
no
toxic characteristics of the dust so created, air pollution
is defined by the Act as “the presence in the atmosphere of one or
more contaminants in sufficient quantities and of such character-
istics and duration as to be injurious
to human, plant or animal
life,
to health or property or to reasonably interfere with the
enjoyment of life or property’t.
It is clear from the record that
the circumstances above—described constitute an interference with
the enjoyment of life and property and result in air pollution as
defined in the Act.
Cf. Employees of Holmes Bros.,
Inc. by
F.
Estel Williams, Chief Engineer v. Merlan,
Inc. and L.
Mervis,
President;
Environmental Protection Agency,
Intervenor, #71-39,
Opinion dated September 16,
1971.
One witness testified that on particular days when the wind
was strong,
the dust generated prevented him from seein~across
the street
(R.84).
Another witness described the condition as
“just like putting a red curtain down”.
Another witness testified
that contact with the dust caused her face to swell and required
medication in the form of shots and pills,
On the three specific
dates enumerated in the complaint, Environmental Protection Agency
inspectors answered complaint calls from neighbors and inspected
the property.
In each case,
the blowing of red dust was observed.
(R.25, January 20, 1971),
(R,27, February 1,
1971).
(R,
28,
March
31, 1971).
On the last occasion,
the inspector observed a
cloud of red dust which could be observed from the office in
Collinsville.
One inspector noted that “the whole area would be
red,
the houses, the porches, the streets.
Everything would take
on the shade of the red deposit”.
Accordingly, we find that Respondent has caused air pollution
in violation of Section
9(a) of the Environmental Protection Act.
The more difficult question is what
to do about it.
Respondent
has investigated various possibilities of abatement.
The most ob-
vious method would be to move the pile.
However,
this would entail
costs and procedures that are beyond the capability of the District.
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Efforts to obtain State or Federal funding appear to have been
fruitless.
Some experimentation has been conducted with respect to
covering or spraying the pile but does not appear to have been success-
ful.
A proposal to use horse manure generated at the nearby race-
track to abate the present nuisance was more visionary than practical
and accordingly,
abandoned.
Efforts to stabilize the slag by plantings
likewise suffered the same fate.
Compacting also failed to produce
satisfactory results and led to the loss of a bulldozer.
More recently, attempts have been made to find uses for the
slag by the manufacture of such products as bricks and other products
that would,
if successfully processed, not only dispose of the refuse
problem but also increase employment in the area~which is subject
to a severe economic impact,
Efforts are presently being made through
the use of a German process to convert the slag into a useful product.
The character of this product is not clear from the record but it
appears that efforts are continuing to determine whether the aluminum
sludge could be utilized in this respect
(R, 130-132).
If successful,
this process will utilize the entire accumulated pile and terminate
the problem.
Board Member Dumelle suggL~sthat contact be made with
the United States Bureau of Mines for the consideration of
a solution,
(See Bureau of Mines research programs on recycling and disposal of
mineral-, metal-, and energy-based solid wastes, by Charles
B. Kena—
han and Einar P. Flint.
Washington
U.
S.
Dept.
of the Interior,
Bureau of Mines
1971,
Information Circular No.
8529),
He further
suggests that experimentation be conducted
to
determine whether sludge
generated by the Metropolitan Sanitary District might be used for recla-
mation purposes as is being done in other parts of the State.
The record indicates that the Respondent, a State entity,
has
not called for a Referendum to levy any general obligation tax in
consideration of the relatively high tax rate in an economically
distressed area and has relied principally upon revenue bonds for Its
financing~
On the state of the record it does not appear that a penalty
would be appropriate.
The conditions giving rise to the alleged vio-
lation were inherited by Respondent.
While Respondent has done little
to abate the conditions, the available long—term alternatives do not
appear particularly suitable or attractive unless a use can be found
for the slag that would econoñtically justify its removal.
However,
steps should be taken to abate this nuisance in the short run until a
definitive use can be made of the pile.
Facilities for wetting down
the pile should be installed until such time as removal can be effec-
tuated.
Respondent acknowledges that this method appears both reason-
able and feasible
(R.l55-l57).
We will keep this proceeding open to
enable Respondent to submit to the Board, within
60 days from the date
hereof, an interim plan for abatement of the nuisance so created pending
ultimate disposal and removal of the pile.
Upon receipt of the interim
plan, we will enter such further orders as shall be appropriate.
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At the hearing, Respondent raised the usual constitutional
and statutory objections relative to the Board’s power to impose
fines and the delegation of authority by the Legislature to the
Board.
These contentions have been raised many times in previous
proceedings and have been answered in detail by our former decisions.
See Environmental Protection Agency v. Granite City Steel Company,
#70-34, Environmental Protection Agency v. Modern Plating Corporation,
#70-38.
To the extent Respondent’s arguments constitute a Motion
to Dismiss, said motion is hereby denied for the reasons previously
set forth.
This opinion constitutes the findings of fact and conclusions
of law of the Board.
IT
IS SO ORDERED.
I, Christan Moffett,
Clerk of the Illinois Pollution Control Board,
certify that the above Opinion and Order was adopted on the
/
day of August,
1972 by a vote of 5-0.
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