Wayne County Dept. of Health, Air Pollution Control Division v. Olsonite Corp.
| Decision Date | 22 November 1977 |
| Docket Number | Docket No. 77-114 |
| Citation | 79 Mich.App. 668,263 N.W.2d 778 |
| Parties | , 8 Envtl. L. Rep. 20,097 WAYNE COUNTY DEPARTMENT OF HEALTH, AIR POLLUTION CONTROL DIVISION, Plaintiff-Appellee, v. OLSONITE CORPORATION, a Michigan Corporation (formerly Swedish Crucible Steel Co.), Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Honigman, Miller, Schwartz & Cohn by Robert A. Fineman, Detroit, for defendant-appellant.
William L. Cahalan, Pros. Atty., Donald A. Campbell, Joseph B. Klein, Asst. Pros. Attys., for plaintiff-appellee.
Before RILEY, P. J., and BASHARA and MAHINSKE, * JJ.
This is a suit for injunction, brought under the aegis of the Michigan Environmental Protection Act, M.C.L.A. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq. Following a nine-day trial that began on November 23, 1976, plaintiff Wayne County Health Department, Air Pollution Control Division, (hereafter, "the Division"), secured a decree from the lower court directing defendant Olsonite Corporation to adopt within a stated period "a specific supplemental odor control system" capable of achieving emission limits set by the court.
The Division, empowered to investigate, prevent and abate causes of air pollution within Wayne County and to enforce the Wayne County Air Pollution Control Regulation Olsonite, situated amid other industrial facilities and bordering residential areas to the east, north and south, manufactures molded plastic toilet seats, steering wheel inserts and various flexible plastic parts used by the automotive industry. Of these items, only the flexible plastic parts require painting at Olsonite's plant on Conant. The parties do not dispute that, as an incident of the painting process, certain pungent odors are produced which, if unrestrained, are then emitted into the atmosphere and carried off by prevailing winds. The crux of the controversy, however, centers on the effectiveness of Olsonite's present method of restraining its paint fumes from entering the atmosphere.
(hereafter, "the Regulation"), 1 filed the present suit on October 12, 1973. Its complaint alleged that Olsonite, a domestic corporation located at 8801 Conant Avenue, [79 Mich.App. 673] Hamtramck, Michigan, "has discharged and continues to discharge" into the ambient air "obnoxious and foul odors" which threaten to pollute, impair or destroy the atmosphere and which endanger the health, welfare and safety of residents in the vicinity.
The painting operation, conducted weekdays on a single shift from 7 a. m. to 3:30 p. m., employs an overhead conveyor system by which parts to be painted are passed through a series of four paint spray booths, a flash-off chamber and a bake oven. In addition, Olsonite uses a chain-on-edge conveyor which carries parts through an enclosed painting machine. Necessary finishing is then performed in two separate paint spray booths. In all, according to defendant, there are ten potential sources from which odor may emanate.
Paint is electrostatically applied by automatic spray equipment located in front of the booths. The paint, specified by Olsonite's customers, is a proprietary urethane enamel produced by PPG, Inc. In addition to certain known solvents that are part of PPG's paint formula, Olsonite is required to add other solvents in connection with the painting process. Originally Olsonite utilized a solvent blend of Toluol and Xylol as recommended by PPG. During 1973, however, because of the energy crisis, these solvents became unavailable and Olsonite allegedly was required to switch to a blend containing solvents with lower odor thresholds (and thus higher odor potential) than those in the original Toluol-Xylol blend. In February 1975, the original blend became available again and has been used by Olsonite since that time. These solvent blends, it should be noted, are not water soluble.
Each of the paint spray booths is equipped with devices which form a curtain of water designed, primarily, to trap wayward particles of paint and, secondarily, to prevent the emission of odors into the atmosphere. The water curtain is maintained by a system drawing recirculated water from a tank at the base of each spray booth through a pipe to a manifold at the top of the booth. The manifold contains a number of uplifted nozzles which discharge water against and over a series of baffles controlling the flow and splash of water to form, when fully functional, a continuous curtain of water. Owing to the use of recirculated water, the nozzles at times become clogged by accumulations of paint, causing breaks in the curtain. Through these breaks, paint particles, solvents and exhaust materials escape into the stacks and thence into the ambient air. Olsonite has from time to At the trial, the Division presented the following evidence to establish its prima facie case: 1. Five field inspectors, employed by the Division, testified regarding inspections and surveillance they conducted at or near the Olsonite facility from 1972 to the time of trial. According to their testimony, the inspectors, although not formally enrolled in odor-detection courses, did receive instruction and training on the subject. One of the inspectors, witness Zabick, described the nature of the orientation available to the Division's inspectors:
time modified its operation in an effort to improve the water curtains by adding more baffles, using additional weirs in the water tanks, purchasing extra manifolds to replace those that become clogged and installing (four to five weeks prior to [79 Mich.App. 675] trial) a filtration system that skims excess particles from the recirculated water. In addition, Olsonite has established a procedure for periodic inspection and maintenance of its painting operations. 2
The testimony of the inspectors essentially revealed that on frequent instances from 1973 to the date of trial they had been summoned, often by radio run and almost invariably at the behest of complaining citizens, to verify alleged odors issuing from Olsonite's plant. The voluminous inspection reports and violation notices, entered at trial to show defendant's knowledge that complaints had arisen, describe the alleged odors either in narrative fashion (e. g., "very high", "very pronounced", "pungent", "slight odor") or by means of a Division-adopted Odor Detection Chart 3, a variant The inspectors' testimony, backed by their reports, discloses many instances where odors specifically attributable to Olsonite's painting process were assigned a numerical value of "2" or "2k" and, on fewer occasions, "3". Although these odors abated at times, especially after February, 1975, when Olsonite returned to use of the Toluol-Xylol blend, the reports indicate that inspectors Gribbs, Krawiec and Zabick frequently noted in 1975 and 1976 detectable paint odors emitted by Olsonite.
of the US EPA Odor Detection Chart. 4 [79 Mich.App. 677] Each of these detection charts employs a numerical rating system designed to eliminate the ambiguity inherent in narrative descriptions of odor intensity
2. The lower court admitted office records of the Division which indicate that the Division received 59 citizen complaints against Olsonite in 1973, 38 in 1974, 24 in 1975, and 13 as of August 31, 1976.
3. Thirteen citizens, living north, east and south of the Olsonite complex, testified at trial. These witnesses relayed to the court complaints they registered with the Division and with Olsonite concerning odors, generally characterized as paint-like, very distinctive, unpleasant and offensive, emanating from the Olsonite complex. According to the largely unrebutted testimony of the citizens, the odors caused nausea, burning eyes, headaches, loss of sleep and a reduction in appetite; in addition, the fumes penetrated their homes and were particularly obnoxious during periods of warm weather.
In instances when inspectors and citizens had been asked whether they could distinguish between odors attributable to Olsonite and those of other neighboring industries, the witnesses stated that they had no difficulty in differentiating the various smells. One inspector did mention, however, that the paint odors ascribed to Olsonite and those issuing from a nearby Chrysler facility "were somewhat similar, but there are generally differences between one type of odor from one operation to the other" that a person "very familiar with the different plants" would detect.
4. Dr. Peter Warner, the Division's laboratory supervisor and an expert on odors and odor measurement, testified regarding various field samplings and laboratory analyses of gases emitted from Olsonite's stacks; these tests began in November, 1972, and continued sporadically up to March, 1976.
During his testimony, Dr. Warner explained the method utilized to retrieve a sample of Olsonite's stack effluent 5 and then described...
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