ILLINOIS
POLLUTION CONTROL
BOARD
February 14~ 1975
PEOPLE OF THE STATE OF
ILLINOIS
)
Complainant
v.
)
PCB 74-224
FOSECO, INC.,
)
A New York Corporation
Respondent
Mr. Marvin N. Benn, Assistant Attorney General, on behalf of Complainants.
Mr. Robert A. Knuti, Attorney, Lord, Bissell & Brook, on behalf of Respondents.
OPINION AND ORDER of the Board (by Mr. Zeitlin)
This case came before the Board originally on a Complaint filed by the
Attorney General on June 14, 1974. On June 27, 1974 an Amended Complaint was
filed with Board, which in essence merely added an additional count predi-
cated upon the same facts. The Amended Complaint alleged that Respondent
Foseco, Inc.,
(
Foseco
),
had violated various sections of the Environmental
Protection Act,
(
Act
),
and provisions of the Boards Air Pollution Rules
and Regulations, Chapter 2
(
Rules
).
The alleged violations in the Amended
Complaint~s four Counts can be summarized as follows:
1. Foseco violated Rule 622 and Section 9(b) of the Act in that Foseco
engaged in the rnanuf~~ctureor processing of asbestos—containing products
without a Permit for flanufacturing from the Agency (Count 1, para, 4.)
2. Foseco violated Rule 621(a) in that it engaged in the processing or
manufacture of asbestos-containing materials, which involved the potential dis-
charge of visible amounts of asbestos as fiber or asbestos—containing, without a
full time supervisor for such activity to insure compliance with all applicable
regulations.
3. Foseco violated Rule 621(b) in that Foseco engaged in the processing
described above without sufficiently instructing its employees in the dangers
associated with asbestos, or in the precautions to be taken when working with
asbestos (Count 1, pare. 6).
4. Foseco violated Rule 621(c) when it engaged in the processing des-
cribed above without providing facilities to prevent employees from removing
from the site visible amounts of asbestos-containing material on their clothing
(Count 1~para. 7).
5. Foseco violated Rule 621(d) when it engaged in the processing des-
cribed above and did not provide for the vacuuming or other suitable collec-
tion of asbestos—containing wastes or spills, or provide for the adequate dis-
posal of asbestos—containing wastes or spills (Count 1, para. 8).
15—475
—2-
6. Foseco violated Rule 652 when it engaged in the processing des-
cribed above without adequately controlling asbestos-handling facilities
so as to vent exhaust air through air pollution control equipment, or
so as to allow for proper sampling of exhaust air (Count 1, para. 9).
7. Foseco violated Rule 654 when it engaged in the processing des-
cribed above without providing for adequate air sampling or monitoring
(Count 1, para. 10).
8. Foseco violated Rule 1O3(b)(2) in that since March 1, 1973 it
operated an existing emission source of air pollution control equipment
without an Operating Permit from the Agency (Count 11, para. 8).
9. Foseco violated Section 9(a) of the Act in that it caused air
pollution as defined under the Act.
10. Foseco violated Section 9(b) of the Act and Rule 103(a) in that
it constructed air pollution control equipment, specifically a baghouse
constructed in April, 1972, without the required permit from the Agency.
BACKGROUND
A hearing was held in the matter on October 25, 1974, at which time
the parties stipulated to a continuance in the expection of reaching a
settlement on the issues. On October 29, 1974, at a continuation of the
hearing, the parties did in fact enter a stipulation and settlement in
accordance with Procedural Rule 333 of the Board. That Stipulation
of Facts and Settlement Agreement forms the basis of this Opinion and
Order of the Board,
Foseco operates a manufacturing facility at 10823 S. Langley, in
Chicago. At that facility it produces refractory ~hottops, which are
insulators placed on the top of ingot molds and head casting assemblies prior
to the pouring of molten steel into the molds. The hot tops contain various
components fabricated of up to 14 asbestos. Additionally, Foseco manufact-
ured a smokeless substitute for exothermic hot topping compounds from about
June of 1972 until November of 1973. The latter operation involved the use
of graphite and nitric acid, and was known as its “A.P.C.” operation; it was
discontinued due to technical and economic difficulties. Foseco employs
approximately 61 people, including both hourly and salaried personnel. The
plant currently operates on three eight-hour shifts,
Asbestos enters the Foseco plant in sealed plastic bags, and when it
is to be used is transferred first to a bin and then to a drum on a scale.
There are two booths in the plant, each containing a bin and scale, From
the drum, asbestos is placed in a hydropulper, where it is mixed with water
and other raw materials. The booths and hydropulpers are serviced by a 40
horsepower blower, which draws collected air through one of twelve bag fil-
ters,
15 —476
-3-
The slurry from the hydropulpers is transferred first to one of five
holding tanks, which keep the asbestos.and other materials in a homogen-
eous suspended state with agitators. From there, the slurry is fed into
one of five forming machines, which use air pressure to force water from
the slurry and form a solid piece containing 25 water. The effluent
water is collected and recycled back to the hydropulper.
The solid pieces from the forming machines are stacked on carts and
fed into three tunnel ovens, where they are dried and cured. The ovens
are natural gas direct fired, and recirculate most of the hot gases. Af-
ter that the pieces are cooled to ambient temperatures by forced outside
air, which is vented outside. No emissions can be observed from these
processes.
The resulting forms are then shrink-wrapped in a 350°Foven with
plastic bags, or are stored on racks for future wrapping and shipment.
The scrap products, materials, and asbestos bags generated by the
entire process are collected and fed into a compactor, which uses a hydrau—
lic ram, and forced into an enclosed steel container with 33 cubic yards
capacity. The containers are enclosed and replaced as they become filled;
they are hauled away by an independent contractor.
The Agency first conducted investigations pertinent to this matter
in April and May of 1973. The Agency inspectors at that time noticed that
emissions from the
IIA.P.C.U
operation described above, which involved the
mixing and oven drying of graphite and nitric acid, were wholly untreated.
There was graphite dust in the floor area of the plant, and on the equip-
ment in the plant; it further appeared that such dust was escaping into the
atmosphere through a window. Before treatment, the graphite particles
being processed in the tA.P,C.’ operation had a particle size under 200
microns. Further, there were at least two citizen complaints regarding emissions
from the plant, concerning the year prior to May, 1973. The Agency con-
tends that these emissions, including a yellow—orange smoke with a hostile
or nauseating odor, resulted from the ‘~A.P.C.t’ operation. The inspectors
also noted that the plant had not applied for permits.
The Agency informed Foseco in a letter of May 23, 1973 that these in-
vestigations had revealed possible violations of Rules 103(b), 621, 622,
651, 652 and 655. Two months later, in August, 1973, Foseco purchased a
vacuum sweeper for use in the plant at a cost of $9,500.
The Agency conducted a further inspection in March, 1974, at which
time inspectors noted that a new baghouse had been installed by Foseco,
at a cost of $54,000, for which no construction permit had been obtained,
The inspectors also noted that dust emissions within the plant were not
effectively collected by the baghouse, as evidenced by particulate buildups.
In May, 1974, Foseco contacted consultants to assist with the pre—
paration of’ Agency operating permit applications.
15
—
477
-4-
STIPULATION AND VIOLATIONS
In the Stipulation of Fact and Settlement Agreement submitted by
the parties to this case Foseco has admitted to certain violations as
described in the Complaint, the Agency has dropped some of the alleged
violations, and the parties have left the determination of other viola-
tions to the Board, its decision to be based on the stipulated facts.
The Stipulation and Settlement here is quite clear, and the parties are
to be commended on their diligence in presenting the matter to the Board
in an intelligible, concise fashion.
1. Foseco admits to violations of Rule 622 and Section 9(b) of the
Act as alleged in Count 1, paragraph 4 of the Complaint. This violation
involved Foseco’s operation without a permit.
2. The Agency withdraws the allegations as to violations of Rule
621(a), regarding processing or manufacturing asbestos-containing
materials without a full time supervisor for such activity. The Agency
was satisfied with Foseco’s showing that such a full time supervisor had
been designated.
3. Foseco and the Agency could not agree as t.o whether a violation
of Rule 621(b) had been shown. The Agency alleged that the violations
detailed above indicated that Foseco’s employees had not been instructed
in the proper methods of handling asbestos, or in the dangers associated
with asbestos. The Agency also argued that even if such instruction were
given, inspections had shown a failure to follow such instructions.
Foseco submitted Exhibit A to the Stipulation, which detailed in-
structions to be given all employees. The Agency contended that such
instructions were inadequate.
The Agency’s observations as to poor housekeeping by Foseco for
asbestos and asbestos—containing materials does indeed raise a permiss-
able inference that the instructions required under Rule 621(b) had not
been given. Exhibit A, however, along with the facts agreed to in the
Stipulation, overcome any inference so raised. The failure of Foseco’s
employees to adhere to in-plant regulations or instructions, while
possibly attributable in respondeat superior to Foseco as violations of
other sections, are not sufficient proof to indicate that the regulations
or instructions were never issued. No violation of Rule 621(b) will be
found.
4. Nor could the parties agree as to whether Foseco had violated
Rule 621(c), requiring facilities to prevent employees from removing
visible amounts of asbestos-containing material from the plant on clothing.
Foseco contends that each employee was provided with a locker for the
purpose of changing clothes, and that shower facilities were provided for
its employees. (Foseco also points out certain actions taken by it since
the commencement of this suit which are not applicable to the action here,
although they may provide evidence as to good faith attempts at full com-
pliance. Such actions include provision of vacuum cleaners for the remov-
al of asbestos-containing materials from clothing.)
15 —478
—5—
The Agency points out that employees were observed to be working in
their street clothing, and that only one locker was provided for each
employee. These matters were not controverted by Foseco.
While Rule 621(c) does not require vacuum cleaners or double lockers,
the clear intent of that section is to prevent the spread of asbestos-
bearing contaminants beyond the factory premises. See, In the Matter of:
Asbestos Regulations, PCB R71—16, January 6, 1971, 3 PCB 437, 456. The
Agency correctly points out that it is inadequate to keep asbestos-contam-
inated clothes together with street clothes. Further, the presence or
absence of shower facilities could at best have a marginal effect on the
amount of asbestos carried out on the employees1ciothing. A violation of
Rule 621(c) will be found.
5. The parties also disagreed as to whether Foseco had violated
Rule 621(d), which requires the vacuuming or other suitable collection
of asbestos-containing wastes or spills, and the adequate disposal of
such wastes or spills. As described above, Foseco’s wastes were placed
in a sealed metal container, although not marked as required by Rule 621
(d). The Agency also points out that empty asbestos bags were left unat-
tended, and that not all spills were vacuumed immediately.
Foseco
points
out the purchase of its vacuum sweeper, and the fact
that
it has obtained a closed compactor for its waste materials since
the commencement of this action. Foseco contends that these and other
actions recently taken have corrected whatever technical violations of
Rule 621(d) may have occurred. In its Asbestos ~
jons Opinion, supra,
3 PCB at
443, the Board took cognizance of the extreme dangers which may
result from contact
with asbestos. The Regulations concerning asbestos
are designed to minimize
those dangers, and prevent
~ violation. Foseco
will be found to have violated Rule 621(d).
6. The Agency has withdrawn its allegations of violation as regards
Rule 652, which requires that exhaust air be vented for proper treatment
and sampling, for the period since January, 1974, only. In January, 1974
Foseco installed a new baghouse, and stack tests, (exhibit B to the Stipu-
lation), taken in September, 1974, indicate that sufficient treatment has
been provided since January, 1974, to prevent the emission of asbestos or
asbestos containing materials into the atmosphere.
The Agency has not, however, withdrawn its allegations of a Rule
652 violation for the period prior to January, 1974. While Foseco denies
that there were visible emissions in violation of Rule 652 during that prior
period, the absence of control and the citizen complaints noted above would
indicate such a violation. (Although the citizen complaints seem more closely
related to the defunct “A.P.C.” operation, their presence indicates that the
controls required by Rule 652 were not present. Rule 652, it must be re-
called, controls not emissions themselves but the presence or absence of
devices to control and monitor all exhaust air, without a requirement that
such exhaust air actually contain asbestos.) A violation of Rule 652 will be
found.
15—479
-6-
7. The Agency withdrew its allegations of violation as to Rule
654. Stack tests were conducted in September, 1974, indicating com-
pliance with the applicable limitations. Rule 654 controls monitoring
and reporting, and requires that factories or plants take samples and
report at a frequency to be determined by the Agency.
8. Foseco admits violation of Rule 1O3(b)(2), in that it has
operated without the required operating permits for existing sources.
As a showing of good faith, Foseco is presently applying for such per-
mits.
9. The parties cannot agree as to whether Foseco has violated
Section 9(a) of the Act, which prohibits the emission or threat of
emission of any contaminant, which will cause or tend to cause air
pollution. With the exception of ‘certain days during the course of its
implementation of the APC operation”, Foseco generally denies such a
violation. Such a denial cannot stand in the face of the citizen complaints
and Agency observations stipulated to by the parties. Further, Section
9(a) of the Act makes no exception for”certain days. A violation of Sec-
tion 9(a) will be found.
10. Foseco admits violation of Rule 103(a), in that it did not obtain
a permit for the construction of its baghouse, described above.
SETTLEMENT
The parties have in their agreed Settlement listed quite a few steps
which Foseco will take to achieve compliance with the Act and the Rules
and Regulations of the Board. These are detailed and lengthy, and are
set out fully in the Settlement as parts 1 through 12 of paragraph 15(a).
Basically, Respondent agrees to better housekeeping procedures, employee
instruction approved by the Agency, better scrap handling, provision of
company-laundered work clothing, and other similar items. Additionally,
Foseco will apply to the Agency for alT required permits, and will report
to the Agency all delays in compliance. The Board has approved similar
Settlements, in cases involving asbestos, EPA v. Georgia-Pacific, PCB 74—
179, January 3, 1975, and
will continue to do so where compliance appears
to be a major object of such
settlement, as appears to be the case nere. The
Order will include a provision that
these duties be carried out by Foseco.
The Agency has recognized that Foseco has acted in good faith to
achieve such compliance, as will the Board. Foseco’s plant is located in
an industrial complex, and the Agency has stipulated that the rule violations
set forth here were confined to the plant area. Although it has not also
been stipulated to, it would seem that compliance efforts by Foseco will
prevent the problems which resulted in the citizen complaints discussed
above. For these reasons, the Board finds that the $6,000 cIvfl penalty
agreed to by the parties in the Settlement Agreement is ~reasonable.
15 —480
—7—
In accord with the findings herein, the Board accepts the Stipulation
of Fact and Settlement Agreement submitted by t p rties to this action.
This Opinion constitutes the findings of fact and conclusions of Law of
the Board in this matter.
ORDER
IT IS THE ORDER of the Pollution Control Board that:
1. Respondent Foseco is found to have violated Sections 9(a) and 9(b)
of the Illinois Environmental Protection Act.
2. Respondent Foseco is found to have violated Rules 103(a), 1O3(b)(2),
621(a), 621(c), 621(d), 622 and 652, of the Board’s Air Pollution Regulations,
Chapter 2.
3. Respondent Foseco shall pay to the State of Illinois as penalty the sum
of $6,000 within 14 days of adoption of this Order. Payment shall be made by
certified check or money order to the State of Illinois, to:
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois 62706
4. Respondent Foseco shall undertake certain other managerial and opera-
tional actions, in conformance with parts 1 through 12 of paragraph 15(a) of
the Stipulation of Fact and Settlement Agreement submitted in this matter.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control Board,
hereyb certify the above Opinion & Order ylere adopted on the /.4(Y”? day
of
~
, 1975 by a vote of
4
toO
Q~an~ioffet~Ø~
Illinois Pollution
rol Board
15
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481