ILLINOIS
POLLUTION CONTROL BOARD
June 22,
1979
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
)
PCB 73—252
D.A.
STUART OIL CO., LTD.,
a foreign corporation,
Respondent.
MELVIN
A,
RIEFF AND ALAN
L.
FULKERSON, ASSISTANT STATE’S
ATTORNEYS,
APPEARED
ON BEHALF OF COMPLAINANT.
ROBERT
E.
PFAFF,
JENNER
&
BLOCK, APPEARED ON BEHALF OF
RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by
Mr.
Goodman):
This enforcement case has been before the Board since
June
18,
1973.
Discovery and hearings carried the matter
into the first quarter of 1975,
with briefs and arguments
generally completed by June of that year.
At that point in
time there were two very similar cases before the Board,
PCB
74-191 and PCB 74-193,
both of which were enforcement cases
against Bulk Terminals
Co.
(Bulk).
Both had previously
appealed the Board~sjurisdiction
in those matters,
and by
June,
1975, when the Board was preparing
to decide this
case, the Appellate Court,
First District,
upheld Bulk’s
position concerning Board jurisdiction.
Considering the
similarity between the Bulk case and this case,
and the fact
that the First District’s opinion
in Bulk was to be appealed
to the Illinois Supreme Court,
the Board felt that it would
be
in the best interest of all involved
if
a decision in
Stuart were stayed until the Illinois Supreme Court ruled on
the jurisdictional question in Bulk.
On July 12,
1978,
the
Board received a copy of the mandate of the appellate court
in Bulk granting the Board~smotion to dismiss Bulk’s inter-
locutory appeal, pursuant to
a Supreme Court decision that
Bulk had failed to exhaust its administrative remedies.
The
Bulk appeal having been resolved,
the Board shall proceed to
decide the case against Stuart.
This action was commenced by the State’s Attorney of
Cook County in
the name
of the People of the State of Illinois
(People)
on June
18,
1973,
with the filing
of a four count
34—29
complaint.
Respondent herein is the D.A, Stuart Oil Co.,
Ltd.
(Stuart),
a foreign corporation.
The People allege a
violation of Section 9(a) of the Environmental Protection
Act
(Act) and Rule 103 of the Board~sAir Pollution Control
Regulations
(Regulations),
Hearings were held on November
5,
19 and 21,
1974,
and January
8 and
9 and February 27,
1975.
Count
1 alleges strict liability on the part
of
Stuart
for the results
of
an occurrence at its facility.
Count
2 alleges failure on Stuart’s part with respect to
prevention of such occurrence, while Count
3 alleges failure
to provide adequate facilities and training to control the
situation subsequent to the occurrence.
Count
4 alleges
failure to obtain necessary permits for certain equipment
located at the facility.
In its brief filed May
14,
1975,
Stuart made a motion to Strike and Dismiss the complaint
(R,9).
The motion is hereby denied.
D.A~.Stuart Oil Co.
has been in business in the Chicago
area for over 100 years, manufacturing and marketing petroleum
and chemical products to the metal working and automotive
industries.
(R,613-’619),
Prior to March 20,
1973,
Stuart
stored sulfur monochloride (S2C12), intended for use in the
production of cutting oils,
in a tank on its premises located
on South Troy Street in Chicago,
Illinois.
On March
20,
subsequent to the transfer of about 8,000 gallons of S2C12
to Stuart’s storage tank from a railroad tank car, the
storage tank started to leak,
exposing thousands of
gallons
of the S~Cl~to the atmosphere.
This leakage resulted in
the form~ti8nof clouds of hydrochloric acid and sulfur
dioxide, which reached heights of approximately 250 feet and
stretched for several blocks
(R.22,110).
Although the
situation was generally under control by late in the evening
on March
20, another short emission occurred on the 21st
during
a transfer operation, which resulted in the
evacuation
of a nearby industrial facility.
The People allege that
many failures on Stuart~spart regarding its storage of
~2~2
resulted in injuries and damage which should have been
lessened,
if not entirely avoided, by the exercise of ordinary
care.
Stuart responds that the entire episode was
an unfor-
tunate accident involving
a piece of non—production equipment
and that Stuart did everything that could be reasonably
expected of it to abate the resulting pollution.
The first witness
for Complainant was Sidney M.
Marco,
Assistant to the Commissioner, Department of Environmental
Control, City of Chicago
(R.14—80).
Mr.
Marco stated that,
when he arrived at the scene of the leak,
emissions were
very dense and reached as high as 250 feet above the ground.
Upon discussion with the plant chemists and other personnel,
he suggested the addition of lime to neutralize the acid
vapors which were presently being emitted from the
building
surrounding the leaking tank.
Mr. Marco then contacted the
City of Chicago by radio and instructed them
to procure the
34—30
needed lime and send it out to Stuart,
Subsequently a
fire
department truck arrived with
bagged lime which was thrown
into
the
building
in
an
attempt
to
reach
the
source
of
emissions.
Soon
thereafter,
two
tanker
trucks,
one loaded
with
powdered
lime
and
one
with
pebble
lime,
arrived.
The
powdered lime truck,
having
a screw-type discharge at its
back end, was backed into the
side of the building,
and the
lime was discharged into the pit where the
S
Cl
was reacting.
The emissions subsided immediately, and the ~eb~le
lime
truck was sent back
as unneeded.
The next
day,
according to
Mr. Marco,
a crew of chemical workers pumped the remaining
2,000 gallons of
S Cl
from the
tank
into
an
adjacent
railroad
care
During this ~pe~ation
additional fuming occurred which
resulted in a manufacturing
facility located nearby sending
home its night shift operation.
The tank was not secured
until
late on May 21 due primarily,
according to Mr.
Marco,
to the cautious procedures
used by the chemical workers
in
pumping the remaining S
Cl
from the storage tank.
Mr.
Marco indicated that th~Jissions
were
a
type of acid mist
which was neutralized by addition
of the highly basic
lime.
The Complainant’s
second witness was
Robert
F.
Gasvoda,
Vice~-Presidentof Stuart.
This witness indicated that
approximately
4,500 gallons of the
S Cl
were lost during
the leak and that
the storage tank Js
destroyed.
In addition,
the witness indicated
that
approximately 1,100 gallons of
the S2C12 had
been consumed by the lard oil which Stuart had
added to the leaking area
prior to the addition of the lime.
George
Kuzell, an oil compounder for Stuart, testified
next for the Complainant.
This witness indicated
that he
had not been instructed by Stuart’s
management about what to
do
if
a spill
occurred while unloading a railroad tank car
into the storage
tank or in the event of
a
leak in the
storage tank itself,
In addition, the witness
testified
that there was not
sufficient empty tankage available into
which the contents
of a leaking
S
Cl
storage tank might be
pumped.
The witness also testifi~d~hat the masks
supplied
by
Stuart
in
this area
were not suitable for combating the
emissions
that
occurred
and
that
Stuart
had not stored any
S2C12 since the time of the
accident,
Stuart’s plant
manager,
Charles Zernick, testified that
he and other plant
personnel poured water from
a
garden hose
over the leaking
tank and into the pit in which the tank
resided in an effort to dilute what was
at that time considered
a minor leak.
Upon realization
that the leak was indeed a
major
leak,
he informed
management personnel and
a
decision
was made to add lard oil
pumped from
a
5,000 gallon tank in
an area away
from the leak area.
By this time,
the fire
department had been notified and had arrived
on the scene.
Pumping continued for
approximately one hour,
ending somewhere
between 8:00 and
9:00
(R.202).
At that time the fumes were
34—31
-4-.
headed in a generally southwest direction.
Soon thereafter,
the lime was applied to the leaking tank and pit.
At that
time all odor and fuming ceased completely, although the
witness
indicated
that
the
fuming
had
been
greatly
reduced
by
the
application
of
the
lard
oil.
Mr.
Gerenick
also
indicated
that
there
were
no
pumps
or
any
other
method
of
drainage
associated
with
the
storage
facility
and pit.
Another oil compounder working for Stuart, George
Dieck, Jr., testified that he was not given instruction as
to the procedures in the event of an emergency, but had gone
to
his
supervisor,
Mr.
Gerenick,
when
he
discovered
the
leaking
storage
tank.
In
addition,
he
testified
that
thick,
heavy
smoke
persisted for some time after the lard oil was
applied
to
the
pit (R.239).
The People next produced a series of eight citizens who
were either residents or persons in the vicinity of Stuart
when the leak occurred.
These witnesses all testifjed
generally as to
the
symptoms
they
experienced
when
they
were
exposed
to the emissions from Stuart, including coughing,
difficulty
in
breathing,
dizziness,
faintness,
vomiting,
irritation of eyes, nose and throat, blurred vision, prolonged
headaches and acid burns over contacted areas of the body.
Although some of the witnesses in4icated f4iat the discomfort
was
temporary,
others
indicate4
that
the discoSfor~caused
by
the
emissions
persisted
to
the
4ay
of
the
hearing,
seven-
teen
months
after the
date
of the acbident
(R.371).
Other
victims were required to stay in the ~sospita~L
for a week àr
more (R.355,385,252).
One
victim, ~‘1rs.
Pçflilda Enrika,
required a one week stay in a hospital ~nd upon reease, a
weekly
doctor’s
visit
for
one
month to; x-ray treflmeñt.
At
the
time
of
the
hearing,
sJle
was
on
a
monthly
sché4ue
for
examination
and
has
suffere4
a
permanant
brea~ing
disab44ity
which
requires
the
use
of
a
device
called
“litt4e
puffer” to
aid
her
in
times
of
shortness
of
~reath
(R.253-4).
pxhi~it
11
indicates
the
types
of
private
claims
filed against
Stuart an4 payments ma4e
by
Stuart’s
insurance
carrier
in
settlement of these claims.
In
addition
to
the
damage
to
persons,
property
4ama9e
to
paint
on
houses,
metal
fences,
roofs, windows, grass,
automobiles,
etc
•,
occurred.
Testimony
by
the
citizens
also
indicated that the fumes intererred with the
enJoy~aeñt
of
life and property for those in
the
area of the accident.
Irving Bernstein, a chemical engineer employed by the
U.S.
Environmental Protection Agency, indicated that from
his
personal
experience
a
number
of
procedures
and
pieces
of
equipment
should
be
utilized
by
people
storing
toxic
materials
such as S Cl
•
Included
in
his
review
of
reasonably safe
procedurei aid practices were periodic testing of the tank,
empty
reserve
tanks
to
pump
off
the
chemical
in
case
of
a
leak,
location
of
the
pumps in an area away from the storage
34—32
tanks
to prevent their being
engulfed with the fumes and
rendered inaccessible,
gas masks and protective clothing for
the employees,
storage
tanks above ground and surrounded by
permanant concrete drainage pits with permanant pumps installed,
availability
of neutralizing
chemicals
to be applied
in the
case of a
leak,
and a program of emergency procedures with
employees instructed
about such procedures
(R,430—560).
Bernard Friedman,
a PhD in chemistry and a lecturer at
the University
of Chicago, testified about the efficacy of
adding hydrated lime to a spill
of
S
Cl
as opposed to
adding lard oil
to such a spill.
Hi~c~nclusionwas that
lard oil would be preferred if water was not present, but
that the lime would be
a preferred method in the case of wet
S2C12.
In addition,
he testified about the procedures and
equipment to be used in
preparation for and in combating
a
chemical spill.
His conclusions were very much the same as
those of the prior witness,
Irving Bernstein
(R.523.’598).
Dr.
Friedman also testified
about the effects of hydrochloric
acid mist on people and
things,
After the People
presented their case
in chief,
Stuart
produced one witness
on its behalf,
Mr. George G.
Spahn,
President of the
D,A.
Stuart Oil Co.
Mr. Spahn testified
about the history of
the storage
tank,
indicating that to
his knowledge it had been scraped and painted and “sonically”
tested,
apparently by use of a hammer.
Mr.
Spahn further
indicated that no
S Cl2 had been stored or utilized at the
facility since the ~ay of the accident,
that the tank had
been scrapped,
that
the reactors had been shipped out of
state,
and that as President of Stuart,
he had no knowledge
of any plans
by Stuart to reintroduce S2C12 into production
at
the facility.
Stuart alleges that the occurrence was “this unfortunate
accident which resulted in
air pollution”
(Respondent’s
Brief, page
1),
The Board agrees that the leak of the S,~Cl2
and the resulting air
pollution
was
accidental
in
that
there
was no plan or guilty knowledge on the part of Stuart with
regard to the
emissions.
The
Board
has found in the past
that the Act does not demand
proof of guilty knowledge or
mens rea to
support
a
finding
of violation.
Phillips Petro-
leumCo.
v,
EPA
and
Chicago
& Northwestern Transportation
Co.,
Ill.App.3rd
(2nd District, 1979),
Meadowlark Farms,
Inc.
v.
PCB,
17
Ill.App.3rd
851,
308 NE2nd 829
(1974),
Bath,
Inc.
v.
PCB,
10 Ill.App.3rd
507,
294 NE2nd 778
(1973),
However,
in
determining
a
violation in a case such as
this the Board must,
according to Section 33(c) of the Act,
consider certain factors which
in effect weigh the value of
the pollution
source
against
the
effects
of
such
pollution
on the
People
of the State of Illinois and their property.
There appears to be
no
question
about
the
social
and
economic
value of Stuart nor even the
suitability
of
Stuart
to
the
34—33
—6—
area
where
it
is
located.
The
concern
of
the
Board
in
this
case is the character and the degree of injury to or inter-
ference with the health, general welfare and physical property
of the People of the State.
That such injuries did occur
was proven by the testimony of the various victims and the
insurance claims and settlements presented in Complainant’s
Exhibit 11.
Indeed, Stuart does not deny the injuries and
states only that
“none
of the injuries to persons were shown
to be serious, or of a
permanant
nature” (Stuart Brief, page
9).
The record thus supports the allegation that people
were inconvenienced and harmed physically and that property
was damaged and
destroyed.
The issue before the Board now
is whether this
injury
and interference could have reasonably
been
reduced or eliminated by Stuart in this case.
Stuart alleges it did everything that could reasonably
be expected to abate the pollution
and
minimize the resulting
damages to persons and property.
The facts in the record,
however, indicate that it was the expertise of an employee
of the Chicago Department of Environmental Control and his
personal contacts
with
other
industry
in
the
area,
along
with the Chicago Fire Department, that finally resulted in
control of the acid mist emissions that were causing the
injuries and damage.
Although Stuart pumped a large amount
of lard oil into the pit to neutralize the effect of the
S Cl
,
it was the company’s earlier addition of water which
a3pJently caused the lard oil to be relatively ineffectual.
It was not until 8:00 or 9:00 in the evening, approximately
five
to
six
hours
after
the
leak
was
discovered,
that
the
pollution was abated with the use of powdered lime.
The
record shows that Stuart not only failed to have an emergency
plan
and
equipment designed to cope with such situations,
but also had not instructed its employees in the correct
procedures for handling leaks of a dangerous and reactive
material such as S,Cl,.
It appears that there was material
available with whi8h to neutralize the S2C1, using a proper
procedure, but it is unclear whether the material was avail-
able by design or by accident.
It was clear from the record,
however, that most of the equipment and material that Stuart
alleges were available for use in an emergency was in fact
rendered inaccessible by the very leak it was supposed to
help control.
In EPA v. Chicago & Northwestern Transportation Co. &
Phillips Petroleum Co., PCB 76—155, decided June 8, 1978,
the Board found that:
“if the people of the State of Illinois are to be
exposed to the danger of pollution, it must be the
burden of those who
own
and/or operate the potential
source to anticipate and make preparations to abate
this pollution should it occur.
The owners and/or
operators of these
sources
can
not
expect
the
People
of
the State of Illinois to defend themselves against such
34—34
—7—
pollution without the
help of those inherently best
equipped and most knowledgable with respect to their
protection.”
Considering
the record before us,
the Board finds Stuart
in
violation of
Section
9(a)
of the Act in that Stuart unreasonably
caused or threatened
or allowed the emission of dangerous
contaminants into the environment so
as
to
cause air pollution
in Illinois.
Having
found Stuart in violation of Section 9(a)
of the
Act,
the Board must now consider whether the facts
in this
case warrant
imposition of a penalty and,
if
so,
in what
amount,
Board penalties are generally assessed to produce
an incentive for future compliance with the Act and the
Board’s
Regulations by both the violator and others,
In
this case,
the Board will consider Stuart’s activities
concerning the S~,Cl~
storage tank prior to the occurrence of
May 20,
The Board ~as previously noted the lack of prepara-
tion on Stuart’s
part
for abatement
of emissions that might
occur due
to accidental discharges.
Beyond this lack of
preparation,
the record also indicates that Stuart did only
cursory maintenance on the tank,
including scraping and
painting the exterior and tapping the tank with a hammer in
an attempt to determine how sound the walls were,
The tank
was nineteen years old,
and the record is unclear as
to how
often even that cursory maintenance was performed (R.622,655).
Considering
the
reactive nature of S~Cl2and the fact that
it forms
hydrochloric acid upon expo~ureto moisture,
it
is
reasonable to expect that a preventive maintenance schedule
would include much more frequent inspection of the tank,
particularly the interior, and a much more rigorous test
procedure
to determine the extent of internal corrosion,
if
any, which
has occurred (R,434),
The Board finds that
Stuart had
not followed normally accepted industry practice
with regards
to preventive maintenance of the S2C12 storage
tank and did
not use any reasonable method to determine the
internal status of the tank with respect to corrosion.
Considering
the lack of reasonable care exercised by
Stuart both with respect to the inspection and maintenance
of the tank itself and the lack of a contingency plan to
abate the pollution
once
it occurred, the Board finds that a
penalty is warranted in this case to help further the intent
of the Act,
Cognizant of the fact that Stuart sustained
considerable loss due to the damage occasioned by the leaking
storage tank and the fact that Stuart itself no longer
utilizes S2C12
at its Chicago facility,
the Board will
assess Stuart a penalty
of $2,500.00
for the violation of
Section 9(a) of the Act.
With regard to the allegation that Stuart is
in violation
of Rule 103(b)(2) of the Board’s Regulations,
the Board
finds that Stuart
was
in violation for the period commencing
34—35
—8—
February
1,
1973 and ending
March 20,
1973.
The Board finds
this violation
to be minor in nature and has no reason to
believe that the
lack of a permit contributed in any way to
Stuart’s pollution problem,
We will therefore assess no
penalty for this violation,
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)
D.A. Stuart
Oil Co.
has violated Section 9(a) of
the Environmental Protection Act
in that Stuart
unreasonably caused or threatened or allowed the
emission of dangerous contaminants into the envir-
onment
so as to cause air pollution in Illinois.
2)
D.A,
Stuart
Oil Co.
shall pay
a
penalty of $2,500.00
for the violation in subparagraph
(1)
above,
such
penalty to be paid within
45 days of the date of
this Order by certified check or money order
payable to the State of
Illinois,
Fiscal
Services
Division,
Illinois Environmental Protection Agency,
2200 Churchill Road,
Springfield,
Illinois
62706.
3)
D.A, Stuart Oil Co. violated Rule 103(b)(2) of the
Board’s Air Pollution Control Regulations
in that
it
failed to acquire an operating permit from the
Illinois Environmental Protection Agency for the
period commencing February 1,
1973 and ending
March
20,
1973.
Mr. Werner dissented,
I, Christan L.
Moffett,
Clerk of the Illinois Pollution
Control Board,
hereby certify the above Opinion and Order
were adopted on the
~
day of
~
1979 by
a
vote of
_____
Christan
L
Moffett,
Illinois Pollution Cont ol Board
34—36
