ILLINOIS POLLUTION CONTROL BOARD

March 13, 1975

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

PCB 74-195

DRAPER AND KRAMER, INC.

Respondent.

Mr. Jeffrey S. Herden, Assistant Attorney General, appeared on

behalf of the Environmental Protection Agency;

Mr. Edwin A, Rothschild, appeared on

behalf of the Respondent.

OPINION AND ORDER OF

THE BOARD (by

Mr. Dumelle):

This is an enforcement action brought by the Environmental

Protection Agency (Agency). Draper and Kramer (Respondent)

operate an air conditioning unit, including a cooling tower,

near the south end of its Lake Meadows develcpment in Chicago,

Illinois, which cools an apartment building and a clubhouse

near the unit. The unit also prepares iãe to convert adjacent

tennis courts to a skating rink ~n winter months. The unit

has a 400~-ton cooling capacity and circulate~s about 1200

gallons per minute. For much

of

1973 a chromate~basedrust

inhibitor was used in the system. The Complaint alleges

that beginning on or about July 23, 1973, and continuing to

the day

of

the Complaint, May

24,

1974, Respondent operated

the cooling tower in a manner which caused or allowed the

discharge of a toxic vapor and yellowish mist so as to cause

air pollution in violation of Section 9(a) of the Environmental

Protection Act (Act)

The Agency presented as witnesses seven citizens who

live in townhouses immediately to the south of Respondent~s

cooling tower. These witnesses testified that they were

subjected, especially during windy days, to a spray emanating

from the top of the tower (R, 52, 92, 102, 188)

.

They

claimed that exposure to the spray caused physical discomfort,

affected the growth of foliage,

and

caused damage to homes,

vehicles and clothing, Several

of

them also claimed that

they had

stopped using their backyards as a result of

the

spray (R. 47, 99, 194).

16

—

103

---

-2—

The various afflictions attributed to the spray included

redness of eyes, nasal congestion, earaches (R. 93), sore

throats (R. 215), stinging eyes and deposits on the skin (R.

235). Dr. Williams, one of the complaining citizens, testified

as to his opinion of the health effects of chromate on the

human body. He stated that inhalation of chromate can cause

nasal septal perforation and ulcerations; ingestion can

cause nauseal vomiting, severe hepatitis and abdominal

cramps; and skin contact can cause chronic eczexnatoid general

dermatitis CR. 40).

These citizens also claimed

--

and photographs and

samples admitted into evidence purported to show

——

that the

spray was leaving a gray-white deposit on the foliage,

resulting in withering and a marked difference between those

plants exposed to the spray, and those which were not (R.

52, 93, 139, 191, 216, 237)

.

The spray was also blamed for

damage to automobile paint (R. 62, 189), pitted windows (R.

50), house framing (R. 146), and clothes CR. 190, 198)

An Agency engineer, Mel Villalobos, made several visits

to the area in response to citizens’ complaints. On July

24, 1973 he experienced burning lips and itching skin upon

coming in contact with the spray (R. 269). He also noticed

that the sides of trees facing the tower were wilted, as

was

other vegetation in the backyards of adjacent houses CR.

270). Subsequent inspections were made on August 23 and

September 26. On this latter date Mr. Villalobos compared

leaves near the cooling tower with leaves near Respondent’s

office, and found the former wilted with yellow-brown spots,

while the latter did not have those characteristics

(R.

342)

Respondent presented several witnesses to refute this

testimony. Dr. Leon Dingle testified that he had played

tennis for five years at the Lake Meadows tennis courts next

to the tower. He had felt the spray, but experienced no

physical reaction (R. 474). Cabie Maxwell, Chief Engineer

at Lake Meadows, claimed neither he nor his assistants had

ever experienced physical discomfort while near the tower

CR. 406). Paul Dunn and George Anderson, assistant Vice

President and Vice President of Draper and Kramer respectively,

also testified that they suffered no discomfort around the

tower (R. 439, 452).

Weighing the testimony presented the Board finds that

there is sufficient evidence to find a violation of Section

9(a) of the Act. Although Respondent’s witnesses disclaim

any adverse health effect when in contact with the

16—104

---

—3—

spray, it is clear that their exposure to it was not as

sustained as that of the complaining citizens living adjacent

to the tower. Moreover, it should be noted that the tennis

courts are located to the north.of the tower, while the

testimony indicates that the affected foliage occurs to the

south of the tower, in the direction of the citizens~townhouses.

The Board takes notice of the effects of airborne

chromates reported in the National Institute for Occ.upational

Safety and Health document entitled ~Occupational Exposure

to Chrom.ic Acid”. As reported in t.his document, “exposure

to mixed chromite and chromate compour.ds has been. shown to

cause ulceration of the skin, dermatitis, ulceration and

perforation of the nasal septum, irflamed mucosa, irritation

of the conjunctiva, and cancer of the lung.”

The Board also notes that the American Conference of

Governmental Industrial Hygienists in the report “Documentation

of the Threshold Limit Values

“

established a maximum expogure

leva1 for airborme chronic acid and chromates at

0,1

mg/mi.

With the chromates in the cooling water and

with the cooling

water •r~i~blowing on the neighbors, the people were undoubtedly

erosed to chromates, but at an unknown level,

We cannot

• therefore, the health effect of this exposure,

~XC?~pt

to say that exposure to emissions of chromates should

tzca and emitters of chromates rmouiu ha ~cx be

aware of the gotentially

seriousness of thei.r emissions.

Respondent argues that there is no analytical evidence

of air pollution since no tests were ever performed on the

atmosphere or the deposits on the foliage, and since the

only test of the water in the cooling tower was not performed

uniil after the use of the rustminhibitor had ceased. Respondent

hurther argues that the eviden.ce as .to the toxicity of

a~roriste vas not prooat~e srmce there was no incication of

the concentrations actually received by the complaining

c~tizmns. The fact that no analytical tests were ever

perform~~~edis irrelevant to the Board~s considerations here,

The Respondent was not charged with a violation of a regulation

limiting emissions or setting standards for ambient air

guality. Indeed, as the Agency reply brief points out,

there are no such regulations applicable here. The Complaint

does charge a violation o..f Section 9(a) of the Act, which

reads, in part: “No person shall cause or threaten or allow

the discharge or emission of any contaminant into the en\ironlnent

in any state so as to cause or tend to cause air pollution

in Illinois.” The evIdence desired by the Respondent is

clearly unnecessary here to establish a violation of this

Section of the Act, as read together with the definitions of

“air pollution” and “contaminant” found in Section

3.

16 —105

---

—4—

Respondent also argues that the Complaint relates

solely to the use of the rust-inhibitor and the subsequent

discharge of chromate. The Agency points out, though, that

paragraph six of the Complaint speaks of both toxic vapor

and yellowish rust (Complainant’s Reply Brief 2). It rightly

asserts that the discharge of the mist itself, with or

without chromate, is a contaminant within the meaning of

that term as defined in Section 3 (d).

In finding the Respondent in violation of Section 9(a)

we have duly considered the factors set out in Section 33 of

the Act. We find the injury to the complaining citizens

substantial, the economic and social value of the air

conditioning system of some importance and the location of

the tower unsuitable to the adjacent townhouse residents.

Furthermore, elimination of the discharge was relatively

simple. The record indicates that Respondent ceased using

the rust inhibitor by October 11, 1973 (Respondent Exhibit

3) and constructed a barrier to contain the spray in September

1974 (R. 427, 463)

Due to the potential seriousness of the emissions, the

Respondent should have acted to prevent his emissions from

impinging on the neighborhood. The failure to take preventive

action, through ignorance or other reason, subjected the

nearby residents to not only the effects testified to, but

also to potential health effects testified to by Dr. Williams.

For this reason, we will assess a monetary penalty of $1,000.

The record indicates that Respondent, shortly after

being notified by letter by the Agency (on July 26, 1973) of

a possible problem with its air conditioning system, took

steps to alleviate it. At the suggestion of the Agency they

requested the manufacturer of the rust-inhibitor for an

analysis of the chemical and asked for recommendations on

other corrosion inhibitors of a non-toxic nature (R. 433-

435). They meanwhile reduced considerably the use of the

chemical. A daily log, admitted as Respondent Exhibit

3, indicates the exact course by which the rust—inhibiting

additive was phased out, whereby after September 1, the

chemical was only added twice intentionally, and once inadvertently

on October 11. During this period, Respondent was in correspondence

with the Agency over the problem, and met with Agency representatives

on August 24 (R. 366). Finally, Respondent notified the

Agency, on September 28, that they had ceased using the rust

inhibiting chemical altogether (R. 442).

Although there is some controversy as to how much and

how soon the Agency expected action, we feel the record as a

whole indicates the Respondent cooperated fully and quickly

16

—

106

---

—5—

to alleviate a problem which at the time was only an unproven

allegation. Moreover, Respondent’s letter to the Agency

informing them of the cessation of the use of the rust

inhibitor came almost eight months before the filing of the

Complaint on May 24, 1974. In this period Respondent had no

further contact with the Agency and had no indication that

they had not fully complied with the Agency’s request (R.

422). Furthermore, it was stipulated that the cooling tower

caused no adverse effects after the use of the rust inhibitor

was discontinued CR. 481). It was not until after the first

hearing in this case, on July 17, 1974, that Respondent

became aware that the residents of the townhouses continued

to object to the spray, irrespective of its toxicity.

Within three weeks of this hearing Respondent had entered

into a contract for the construction of a barrier to retain

the spray CR. 426). In light of these factors we deem it

appropriate to assess a minor penalty in this case.

This Opinion constitutes the Board’s findings of fact

and conclusions of law.

ORDER

1. Draper and Kramer, Inc., shall cease and desist from

further violations of Section 9(a) of the Environmental

Protection Act.

2. Draper and Kramer, Inc. is ordered to pay

the sum of $1,000 as a penalty. Penalty payment shall be

made within 35 days to the Fiscal Services Division,

Illinois Environmental Protection Agency, 2200 Churchill

Road, Springfield, Illinois 62706. Said penalty payment

shall be made in

the

form of a money order or certified

check.

IT

IS SO ORDERED.

I, Christan L. Moffett, Clerk of the Illinois Pollution

Control Board, herep certify the above Opinion and Ord r were

adopted on the

~

‘~dayof March, 1975 by a vote of —O

Christan L. Moff

i~J)

Clerk

Illinois Pol1utioiV~ontrol Board

16

—