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Marblehead Lime Co. v. Pollution Control Bd.

OPINION FILED SEPTEMBER 7, 1976.

MARBLEHEAD LIME COMPANY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This is a petition for review of an order of the Illinois Pollution Control Board (hereinafter the Board) directing petitioner, Marblehead Lime Company, to cease and desist from violation of section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1009(a)), and imposing a fine of $20,000 for past violations.

Petitioner owns and operates a lime manufacturing plant located at 3245 East 103rd Street in the City of Chicago. The main process employed at the plant is the calcination of raw limestone (calcium carbonate) in rotary kilns. The end product of the kiln operation is lime and waste products including exhaust gas, limestone, lime, and ash. The gaseous waste product passes from the kiln into a pollution control installation known as a baghouse. There, the gas passes through bags in a process designed to trap dust and particulate matter. The gas and any waste product that is not trapped by the bags is then emitted through stacks into the atmosphere. A baghouse theoretically should operate at an efficiency of 99.50% in collecting dust generated from the kiln.

When petitioner began producing lime at its site in 1926, the entire area was zoned for heavy industrial uses. In the late 1950's, the area directly east of petitioner was rezoned residential and in the early 1960's homes were built on that land. In 1964 petitioner became the first company to install a baghouse pollution control device on a lime kiln. In 1967 petitioner entered into an emission reduction program with the City of Chicago which resulted in installation of baghouses in each of petitioner's four kilns. Petitioner also installed an access road to permit trucks to enter and leave the plant without traveling through the residential area. The capital expenditures for the improvements amounted to $2,163,500.

On May 23, 1973, the Environmental Protection Agency (hereinafter the Agency) commenced these proceedings by filing a complaint with the Board. The complaint charged that petitioner, through the maintenance of open stockpiles and operation of certain equipment and facilities, caused or allowed the discharge of particulate matter into the atmosphere. Said discharge, the complaint recited, caused air pollution, either alone or in combination with other contaminants, in violation of section 9(a) of the Environmental Protection Act. A second count charged petitioner with emissions of particulate matter from open stockpiles in violation of Rule 9(f)(2) of the Air Pollution Control Regulations.

At the conclusion of eight days of hearings, and after receiving memoranda from the parties, the Board dismissed Count II for lack of evidence. The Board, however, in written findings held that petitioner had violated section 9(a), ordered it to cease and desist from further violations by adopting a specific program for improved pollution control, and imposed the aforementioned fine. Petitioner's motion to vacate the order was denied and this petition for review was filed.

Section 9(a) of the Environmental Protection Act provides:

"No person shall: (a) 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 on standards adopted by the Board under this Act; * * *."

The term "air pollution" is defined in section 3(b) as "the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property." Ill. Rev. Stat. 1973, ch. 111 1/2, par. 1003(b).

Petitioner first contends that the Agency failed to prove that its emissions, either alone or in combination with others caused "air pollution" as defined in the Act. Petitioner maintains that the Agency produced no evidence as to the quantities, characteristics, or duration of its emissions and further contends that the Agency failed to prove a causal connection between its emissions and the alleged injury.

At the hearing, the Agency introduced the testimony of 33 persons who reside in the area adjacent to petitioner's plant. These witnesses all testified that their property is subject to a continuous fallout of dust from petitioner's plant. The witnesses specified the source of the dust, stating that it came from petitioner's baghouses, stacks, buildings, conveyor system, and trucks.

Some witnesses stated that the emissions were particularly bad on windy days while others found the dust most bothersome during nighttime hours. The particles were generally described as white or gray, although some witnesses noticed black dust. In texture the dust was termed chalk-like, powdery, sandy or gritty. One witness testified that the dust tasted like lime while others described a chalky dry taste.

As to the quantity of the contaminant, the witnesses agreed that the dust emanating from petitioner's plant covered their home, lawn, garages, patios and inside furniture. They complained of dust on automobiles, in clothing and bed linens, and in swimming pools. Freshly painted homes were soon covered with white powder. Food served outside became covered with the dust, and windows and furnishings required constant cleaning. On windy days, residents found the dust comparable to fog or snow. Several witnesses testified that normal outdoor activities had been curtailed or eliminated because of the dust problem. One woman stated that, after a rain, the dust particles became like cement and took hours to remove. Several witnesses stated that because of the dust their children refused to play outdoors on windy days.

Witnesses also testified that dust particles in the atmosphere had an adverse effect on their health. They described skin, eye, and throat irritations, and attributed these problems to the dust. Two witnesses had trouble breathing when the wind blew toward them. While the dust did not affect some ...


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