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
    481

    Back to top