ILLINOIS POLLUTION
CONTROL BOARD
June
6, 1974
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
)
SEARS, ROEBUCK & COMPANY,
a
)
New York corporation;
DIESEL
)
PCB 73-106
CONSTRUCTION
çOMPPJ4Y, a division
)
of CARL A.
MORSE,
INC.
of Illinois,
)
an
Illinois corporation;
and MARIO
)
& DIBONO CORPORATION,
a New York
)
corporation,
)
Respondents.
)
Mr.
Lee A.
Campbell,
Special Asst.
Attorney General, ‘on behalf of the
Environmental Protection Agency;
Mr.
Edwin
M. Katz and Mr. Howard Gopman,
Attorneys,
on behalf of Marie
and DiBono Corporation;
Mr.
Michael Hawkins, Attorney,
on behalf of Sears, Roebuck and Company and
Diesel Construction Company.
OPINION
AND
ORDER OF THE BOARD (by
Mr. Seaman):
On March
9,
1973, the Illinois Environmental
Protection Agency filed
Complaint against the three Respondents cited above.
On June 8,
1973,
the Agency filed an Amended Complaint alleging violations of Rules 632 and
634 of the Air Pollution Control Regulations
(Non—asbestos spray insulation
provisions) and Section 9(a)
of the Environmental
Protection Act.
Respondent Sears, ~Roebuck
& Company (hereinafter “Sears’)
owns a
piece of property and the improvements thereon (known as
“Sears Tower”)
bordered by Jackson Boulevard,
Wacker Drive, Adams Street and Franklin Street
in Chicago, County of Cook,
Illinois.
Respondent Diesel Construction Company (hereinafter “Diesel”)
acted
as general contractor responsible for the construction of the aforementioned
Sears Tower.
Respondent Mario & DiBono Corporation (hereinafter “Mario”)
was the sub-
contractor charged with spraying fireproofing material
on the aforementioned
Sears Tower.
12—469
—2-
Respondent Mario, under the direction of Respondent Diesel,
both
being employed by Respondent Sears, sprayed non-asbestos, fibrous
fireproofing material
on
the exposed surfaces 0f steel
structural
columns, beams
and decks on the Sears Tower.
Said spraying operation utilized a mixing room where the fire-
proofing material
was prepared by dumping 50-lb. bags of dry mineral
wool
into a hopper.
The material was then pumped to the floor where
the spraying was
to take place.
The material
was then wetted
arid
sprayed onto the surfaces through a hose.
Complainant alleges
that during the period from January 6,
1972
until April
13,
1972,
and particularly
including,
but not limited to,
March
21,
1972,
Respondents caused or allowed visible emissions of
non-asbestos,
fibrous fireproofing material
to occur from within an
area open
to the atmosphere, in violation of Rule 304 of R 71—16, the
Asbestos
Regulations,
adopted
by
the
Pollution
Control
Board
on
January
6,
1972.
Complainant
further
alleges
that
during
the
period
from
April
14,
1972
until
at least the filing of the Amended Complaint, and particularly
including,
but not
limited to, April 21,
1972 and June 6,
1972,
Respondents
caused
or
allowed
visible
emissions
to
occur
from within an area open
to the atmosphere,
in violation of Part
VI,
Section
III, Rule 634 of the
Air
Pollution
Control
Regulations.
Complainant
further
alleges
that
on
August
16,
1972,
Respondents
sprayed non-asbestos fibrous matter
in an area open
to the atmosphere without
enclosing the enttre floor or area
to
be
sprayed
with
plastic or plastic-
coated tarpaulins
in such a manner as
to
preclude the escape of fiber—
containing
material
to
the atmosphere ~ndfurthermore without enclosing
all
elevator
shafts
and
stairwells
so
as to prevent the escape of fiber-
containing
material
from the working
area,
in
violation
of
Part
VI,
Section
UI,
Rule
632(a)
of
the
Mr
Regulations.
Finally,
Complainant
alleges
that
on
August
16,
1972,
Respondents
sprayed
~ion—asbestos
fibrous
matter
in
an
area
open
to
the
atmosphere and
failed
to
thoroughly
vacuum
the
entire
sprayed
area,
and
all ledges and
surfaces including tarpaulins within the enclosure before the enclosure
was
dismantled,
in violation of Part VI, Section III, Rule 532(b) of the
Air
Regulations.
Pursuant
to
Section
9(a)
of
the
Act,
violations
of
the Asbestos
Regulations
and
the
Air
Regulations are also violations of Section 9(a)
of
the Act.
Public
hearings
were
held
in
this
matter
on June 11 and June 2~,1973.
12—470
—3.-
Complainant’s
witness,
Czary
Krztmowski,
an
Agency
environmental
protection engineer,
inspected the site of the alleged violations on August
16,
1972.
(6-11—73
R.
12).
He was informed that the fireproQfing material
being sprayed was Calfco Blaze—Shield Type,
Type CD/F with
a
UL Listing
of AIJ—156, manufactured by the United States Mineral
Products
Company.
(6—11—73
R.
19),
Mr.
Krztmowski
testified
that
he
inspected
floors
48
and
49,
where
spraying had been completed,
and observed that said floors were unenclosed
and that a one-quarter inch layer of the subject fireproofing material
loosely covered virtually the entire floor area.
(6-11-73
R.
21,22).
Mr.
Krztmowski further testified that he observed that at
least two stairwells
and
one elevator shaft were unenclosed.
(6-11-73
R.
23).
Finally, Mr.
Krztmowski
testified that he observed that
the tarpaulin which enclosed
the
50th floor was dismantled before spraying of that floor was completed
(6-11-73
R.
26), and that,
on the 47th floor where the fireproofing
material was being mixed, the material was “flying about,” totally un-
enclosed.
(6-11-73
R.
58).
Complainant’s witness, Richard G.
Droll,
is
employed at
a
location
one block south
0f the Sears Tower.
(6—29-73
R.
18),
Mr.
Droll
testified
that on April
21,
1972,
he observed large chunks
of insulation material
(1/4 to 1/2 inches
in diameter)
failing from approximately
the tenth
floor of the Sears Tower and accumulating on the street and the side of
a building.
(6-29—73
R.
19,
20).
Later
in
the day, the falling material
became much more fine
and the witness compared the situation to
a snow
storm.
(6-29-73
R.
24).
Mr.
Droll
observed similar conditions
on April
28,
1972 and another date which the witness
could not recall specifically.
(6-29—73
R.
25-28).
Complainant’s witness,
David Kee, Chief of Air Enforcement for Region
Five of the United States Environmental
Protection Agency~testified that
on March
21, 1972,
as he walked past the Sears Tower,
he
‘noticed
a
large
amount of white material
falling to
the ground from the Tower and covering
the streets
and sidewalk areas along
Franklin and
in the intersection of
Franklin and Adams
it looked almost like snow to
a certain extent, blowing
up against the
curbs and clinging to
the cars and along the edges of the
buildings
in that general
vicinity there.”
Mr.
Kee obtained
a sample of the falling material
and took several
photographs of the street.
The witness stated that he had observed the
material falling from the Sears Tower on other occasions, but could not
recall specific dates.
(6-29—73
R.
55).
Respondent’s witness, Angelo Calandrella, superintendent in charge of
the fireproofing. operation for Respondent Mario,
stated that during the
spraying operation all open areas were covered and that there was no
possibility of material
escaping.
(6—29-73
R.
79).
Respondent’s witness,
Russell
A.
Raica,
an
employee
of Respondent Diesel
in charge of enclosing
each floor
as
the
spraying
operation
proceeded,
stated
that
floors
being
sprayed were always completely enclosed.
(6-29-73
R.
123).
12
—471
-4—
We are satisfied from the evidence
that Respondents Sears and
Diesel violated Rule 634 of the Air Pollution
Control Regulations on
April
21
and April
28,
1972;
that Respondents Sears and Diesel violated
Rule 632(a)
of the Air Pollution Control Regulations
on August 16,
1972;
that
Respondents
Sears
and
Diesel
violated
Rule
632(a) and
(b) of the
Air
Pollution
Control
Regulations
on
August
16,
1972; and that Respondents
Sears
and
Diesel
violated
Rule
304
of
R
71-16
on
March
21,
1972.
We
further
find
that
Respondent
Mario
violated
Rule 632(a) of
the
Air
Pollution
Control
Regulations
on
August
16,
1972.
Although
it
is manifest that the subject fireproofing material
did
fall
from
the
Sears
Tower
on
the
enumerated
dates,
the
evidence
was
not
sufficient
to
show
that
said
emissions
resulted
from
Respondent
Mario’s
spraying
operation
rather
than
Respondent
Diesel’s
failure
to
thoroughly
vacuum
upon
the
completion
of
spraying
each
floor,
It
was
the
contractuit
diityof
Respondent
Diesel
to
enclose
the
floors
of
the
Sears
Tower
before
Respondent
Mario
conducted
spraying
operations
and
to
vacuum
the sprayed area upon
completion of the spraying.
Thus, while Respondent Mario
is liable for
spraying when the proper enclosure was not in place, it cannot be liable
for
emissions
which
occurred
subsequent
to
the completion of said spraying
operation.
This Opinion constitutes the findings of fact and conclusions of law
of
the
Board.
IT
IS
THE
ORDER
of
the
Pollution
Control
Board
that
for the violations
found
herein:
1.
Respondents
Sears
and
Diesel
shall
each
pay
to
the
State
of Illinois
the
sum
of
$500.00
within
35
days
from
the
date
of
this
Order.
2.
Respondent
Mario
shall
pay
to
the
State
of Illinois
the
sum
of
$250.00
within
35
days
from
the
date
of
this
Order,
Penalty payment by certified check or money order payable to
the
State
of Illinois shall
be made to:
Fiscal Services Division, Illinois Environ-
mental Protection Agency,
2200 Churchill
Road, Springfield, Illinois
62706.
I,
Christan
L.
Moffett, Clerk of the Illinois Pollution Control Board,
certify that the above Opinion and Order was adopted
on this
~
day of
~
1974 by
a vote of
~
12
-.
472