PETITION for a review of order of Pollution Control Board.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This is a statutory review, pursuant to the Environmental Protection Act and the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1041; ch. 110, par. 264 et seq.) of an order entered by the Pollution Control Board (Board).
The Environmental Protection Agency (Agency) filed a complaint charging that Faskure Division of Aurora Metal Company (Faskure), had violated section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1009(a)) in causing air pollution by the discharge of "phenolic odors" and "sand particles and grindings" from its plant in Aurora, Illinois, so as "to unreasonably interfere with the enjoyment of life or property". The complaint requested a cease and desist order and the assessment of a penalty for such violation. Faskure's answer denied the charges and raised an affirmative defense of compliance with the Agency's Air Pollution Control Regulations, particularly Rule 801 et seq. and Rule 203. Prior to the hearing the Agency admitted that it did not contend that Faskure was in violation of those regulations.
The Board found that Faskure had violated section 9(a) of the Act in causing air pollution by the emission of phenolic odors and particulates "in unreasonably interfering with the enjoyment of life or property and being injurious to human health," fined it $1,000 and ordered Faskure to submit within 30 days a program of compliance to be approved by the Agency, together with a $25,000 performance bond guaranteeing installation of equipment, and compliance accordingly, "which bond shall provide for a penalty in the amount of $10,000 in the event [Faskure] fails to cause reduction of its particulate * * * and odor emissions to an extent where they shall no longer constitute a violation of Section 9(a) within" 60 days as to particulate emissions and 9 months as to phenolic odor emissions.
Faskure is a manufacturer of resin coated sand used in the foundry industry and has been operating at its present location since 1959. Its plant is located in a heavily industrialized quarter of the southern edge of Aurora and is zoned M-1, Manufacturing District. Other zonings in the area are M-2, Manufacturing, and R-4, Residential. There are some residential homes in the area, and several factories besides Faskure, including Landgraf Furniture, Airco Welding, and Georgia-Pacific. To the north of Faskure's plant, separated by the main line of the Burlington Railroad, is Meyer Material Co., a cement and concrete mix plant which stores sand is uncovered piles on its property. All of the land west of Faskure's plant is vacant.
The Agency presented the testimony of six resident neighbors and two expert engineers employed by the Agency. The engineers expressed no opinion as to whether Faskure was in violation of the Act. Four of the neighbors testified to dust and grit from Faskure's plant. One of them said the dust came from Faskure and Meyer Material but she could not tell the difference. All of the Agency's neighbor witnesses testified to the phenolic odors. Such odor is noticeable on "still days", when there is a temperature inversion; one witness said it smelled like carbolic acid and that it caused a burning sensation; another said it "sort of" seared her throat; still another noticed it "in excess of" 10 times in the past years and associated the smell with a disinfectant. To another it smelled like glue or paint; and to yet another like Lysol. The Agency's expert, Mr. Zenisek, did not detect the phenolic odor until he got downwind from the plant, and stated that while it was "objectionable" it was "not sickening", and he could not detect any odor from the homes of the three complaining witnesses. The Agency's expert, Mr. Rosenthal, detected "intermittent phenolic odors" while downwind of the plant.
Faskure's expert, Dr. Aynsley, testified that he detected phenolic odors on the roof during stack tests but did not recall smelling it at ground level. He testified, however, that under extreme meteorological conditions ("low level inversion, higher humidity") which occurs only one percent of the time, the odor was detectable in "residences around the plant property lines"; but that the odors are not of such character and quantity as to be injurious to human, animal or plant life.
Mr. Zenisek took dust samples from the front of one of the complaining neighbors' homes to substantiate the fact that the dust came from Faskure. But those samples were lost or misplaced and no report on their analyses was produced.
Faskure called as an adverse witness a Mr. Wennmacher, the first Agency engineer directed to investigate the complaint. He testified that in his opinion, after a thorough investigation, Meyer Material "may be the real cause" of the complaint about sand and dust. The Meyer plant is nearest to those neighbors complaining about dust and grit.
There was also testimony that some of the sand particles and dust problems were caused by trucks owned by an independent carrier, Beck Transport Co., which delivered sand to Faskure in pneumatic conveyor trucks so as to avoid sand spillage. The drivers of those trucks, to speed completion of unloading, may have speeded up the unloading pressure which results in clouds of dust. However, the record does not establish what was the cause. When Faskure learned of that condition in October of 1972, it immediately terminated Beck's services. The Board's opinion found:
"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 constitute an odor nuisance. However, we do not find the evidence sufficient to warrant such conclusion. Accordingly, while Respondent may have established a prima facie 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 emissions to ascertain whether, in fact, a Section 9(a) violation has been established."
Two residential neighbors testified on behalf of Faskure that they were not bothered either by dust or odors from Faskure's plant.
The evidence also shows that beginning in the year 1961, Faskure, being concerned about eliminating dust, retained a consulting engineer to evaluate the problem, and spent large sums of money in installing equipment to control it. In 1972, Faskure used 48 percent of its total capital expenditure budget for environmental protection or implementation of the Health and Safety Act. For the year 1973, Faskure ...