ILLINOIS POLLUTION CONTROL BOARD
~.pri1 7,
1988
DEPARTMENT OF THE ARMY,
JOLIET ARMY AMMUNITION PLANT,
Petitioner,
v.
)
PCB 87—161
ILLINOIS ENVIRONMENTAL
?ROTECTION AGENCY,
Respondent.
JOHN A. ROCK,
ESQ.,
APPEARED ON BEHALF OF PETITIONER;
PETER E. ORLINSKY,
ESQ.,
APPEARED ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flernal):
This
matter comes before
the Board upon
a Petition
for
Variance filed October 19,
1987 by
the Department of the Army,
Joliet Army Ammunition Plant
(ttJ.A.A.P”).
Amendments
to the
Petition for Variance were filed on November
30, 1987 and January
7,
1988.
Petitioner seeks variance from
35 Ill.
Adm. Code
237.103 which regulates open burning of explosive wastes,
so
as
to allow
it to conduct
a one—time burn of accumulated wastes.
Petitioner originally waived hearing.
However,
on November
9,
1987 Iva Duggins,
a citizen who resides near the Joliet Army
Ammunition Plant,
filed an objection.
Hearing was accordingly
set and held March
11,
1988 at the Will County Courthouse,
Joliet.,
Illinois.
Mrs.
Duggins and several other citizens
appeared
at the hearing; Mrs. Duggins commented on the record
(R.
26—27)
On March
9,
1988 the Illinois Environmental Protection
Agency
(“Agency”)
filed
a recommendation
(“Agency Rec.”)
that
the
requested relief be granted, subject to conditions.
Based
on the record before
it.,
the Board
finds
that
Petitioner would suffer
an arbitrary or unreasonable hardship,
not justified by the minimal environmental impact,
should the
requested relief be denied.
The Board
will accordingly grant
the
requested variance subject
to the conditions
recommended by the
Agency.
88—43
—2—
BACKGROUND
Petiti9ner
owns
a munitions manufacturing facility which
is
operated under contract
by Uniroyal Chemical Company,
Inc.
It
is
located on
a
24,000 acre site
in Will County approximately
8
miles north
of Wilmington,
3 miles south of Elwood, and
12 miles
west of Manhattan.
The facility
is presently being maintained
in
a standby
status and has not engaged
in any manufacturing of munitions
since
1977
(R.
at
20).
Nevertheless, Petitioner has accumulated
various explosive—contaminated debris at the facility.
The
contaminated material consists
of such items as vessels,
tanks,
pipes, duct work,
production equipment,
metal
and wood
stairs,
and other miscellaneous items
(Agency Rec.
at
2) which have been
removed from various explosive production areas at Petitioner’s
facility.
The material
is estimated
to be approximately 75
wood
and 25
metal
CR.
at 12),
and
to contain “trace” amounts of
explosives,
mainly trinitrotoluene
(TNT)
(Agency Rec.
at
2).
A
Petitioner’s witness estimated that the waste could contain
“pockets of anywhere
from a couple of ounces
to
a pound
of
explosive material”
(R.
at
14).
The contaminated waste has been accumulated
into
a pile
measuring approximately 175 feet
long by 75 feet wide by
15
feet
high.
The pile
is located on—site approximately three—quarters
of a mile from the nearest J.A.A.P. property line and one mile
from the nearest off—property business and/or residence
(R.
at
11).
Petitioner desires
to decontaminate the pile by burning
it
in situ.
The burning would be conducted on a one—time basis and
would
take approximately two hours.
Petitioner asserts
that destruction of the trace amount of
explosives
that are present requires flashing at high
temperature;
no other disposal method
is presently available
(Petition at
1).
After
the burning has been completed and the
area has cooled,
the metals would
be salvaged
(Id.
at para.
3).
REGULATORY FRAMEWORK
Open burning of wastes which might create
a hazard of
explosion,
fire,
or other
serious harm
is prohibited pursuant
to
35
Ill. Adm. Code 237.103 unless
a variance has first been
granted.
Section 237.103 states in
its entirety:
Section 237.103
Explosive Waste
Open burning of wastes creating
a hazard of explosion,
fire
or other serious harm,
unless authorized by other
provisions
in this Part,
shall
be permitted only upon
application
for and grant of
a variance as provided by
88—44
—3—
the Environmental Protection Act
(Act)
(Ill.
Rev.
Stat.
1981,
ch.
111 1/2,
pars.
1001 et seq.)
and by
the Pollution Control Board’s
(Board) Procedural Rules
(35
Ill.
Adrn.
Code:
Subtitle
A, Chapter
I).
HARDSHIP
Petitioner
alleges that
if
it
is not granted
the variance
which it
is seeking,
it will have no alternative means
of
disposing of
the contaminated waste because, due
to the
contamination,
the material may not be placed
in
a landfill or
shipped off site.
Petitioner
also alleges
that
if the material
is left
in
its present state,
the material will
be subject
to
spontaneous
ignition and may become
a refuge
for rodents and
insects.
Finally, Petitioner alleges that
it
is
impossible
to
safely salvage the wastes because
small quantities
of explosives
may be absorbed into the wood or located on metals
(Petition at
para.
5), which would represent
a hazard
to the salvagers
CR.
at
13—14).
The Agency has undertaken
an on—site inspection of
the
J.A.A.P.
facility and “finds no errors in fact as alleged in the
Petition
for Variance”
(Agency
Rec.
at
4).
The Agency also
agrees with Petitioner
that the contaminated material
is too
bulky to
be incinerated and may not be landfilled or transported
off site due
to contamination with explosives.
The Agency
further agrees that the continued presence of the material on
site
in its present condition could pose
a possible health or
safety hazard.
Given the
lack of alternative means of disposing
of
the wastes,
the Agency
is therefore
of the opinion that open
burning
is
the safest means of disposing of
the material
(R.
at
29) and that denial of the
requested variance would constitute an
abritrary or unreasonable hardship (Agency Rec.
at
7).
ENVIRONMENTAL/HEALTH IMPACT
Petitioner has calculated the amount of expected emissions
using Table
2.1.1 of
the U.S.
Environmental Protection Agency’s
“Compilation of Air Pollutant Emission Factors”, AP—42
(Petition
at para
4).
Table
2.1.1
is titled “Emission Factors
for Refuse
Incinerators without Controls”.
The Agency believes that the
proper emission factors are those contained
in Table 2.4.1
of the
same publication, said table titled “Emission Factors
for Open
Burning of Nonagricultural Material”
(Agency
Rec.
at
4).
For
this and other reasons, Petitioner and the Agency differ
in their
estimates of expected emissions:
88—45
—4—
Total
Emissions
(tons)
Petitioner
Agency
Particulates
4.32
4.8
Nitrogen Oxides
1.33
1.8
Sulfur Dioxide
.03
.3.
Carbon Monoxide
n.c.
25.5
Hydrocarbons
n.c.
9.0
Petitioner asserts
that the burning would
be conducted only
when favorable atmospheric conditions exist
to minimize adverse
effects on air quality (Petition
at Para
3).
These are
to
include wind velocities between
5 and and 15 miles per hour under
clear weather and no inversions
(R.
at
15).
Petitioner also
agrees
to notifying surrounding communities and the Agency of the
intended burn and
to restrict access
to the burn site
(Id.).
J.A.A.P.
also has
it own fire service, which would be on hand
(Id.).
Finally,
Petitioner
introduced
into the record as Exhibit
2 the U.S.
Army’s safety guidelines for decontamination and
disposal of facilities,
equipment,
and material;
as an Army
facility,
Petitioner would
be required
to follow these guidelines
(R.
at
19).
The Agency notes
that the burn site
is located
in
a rural
area and that nopersons
live
in the immediate vicinity of the
site
(Agency Rec.
at
6).
An Agency inspector
also spoke
to Mrs.
Iva Duggins, who has filed
a written objection,
and
to two of
Mrs.
Duggins neighbors who are also opposed
to
the grant of
variance.
The three objectors live approximately
4 miles
southeast of the proposed burn site.
The Agency concludes that
neither Mrs. Duggins nor her neighbors live close enough
to be
adversely affected by the open burning
(Id.).
In summary,
the Agency concludes:
The Agency believes
...
that granting of the variance
sought by petitioner should not pose
a health hazard
because
the open burning site
is located
in an
isolated area,
the open burning will only last about
2 hours,
and Petitioner will conduct the open burning
operation on
a day when atmospheric conditions will
readily dissipate the emissions.
(Agency Rec.
at
6).
PREVIOUS/FUTURE VARIANCES
Petitioner has sought and received several previous
variances
for open burning of contaminated wastes;
the Agency
cites PCB 78—257,
PCB 82—105, PCB 82—106,
and PCB 83—174
(Agency
Rec.
at
4).
In addition
to the wastes Petitioner desires
to burn
pursuant
to the instant request,
the Agency believes that there
are other contaminated wastes at
the J.A.A.P. facility which
88—46
—5—
could become the subject of
future variance requests.
On this
basis
the Agency notes:
The Agency believes that Petitioner should develop
a
comprehensive program to identify quantities and
types of all contaminated wastes and
to determine how
the wastes are
to be disposed.
The Agency believes
that such
an approach
is preferable
to Petitioner’s
current practice of using
the variance procedure
on a
regular
basis as
a means
of performing “house
cleaning”.
It would also enable the Agency to
determine
if there
is sufficient quantity of waste
material which could be incinerated
so
as
to warrant
the construction of an explosive waste
incinerator.
(In 1976,
Petitioner
entered
into separate consent
decrees with the U.S.
Environmental Protection Agency
and the State
of Illinois which provided
for
the
construction
of
an incineration system
for
contaminated and explosive wastes.
Since
the
facility has ceased manufacturing,
the consent
decrees
have not been enforced).
Agency Rec. at
5.
The Agency recommends
that
the disposal program recommended
above be made
a condition of
the instant variance.
The Board
finds merit
in the Agency’s recommendation,
and will condition
the variance accordingly.
This notwithstanding,
the Board notes
Petitioner’s contention
that “under the present conditions, we
shouldn’t
be expecting
to see other requests
for variance
for
opening burning”
(R.
at 21).
Should this conclusion of
no
foreseeable
need
for further variances hold true upon additional
investigation by Petitioner,
the Board assumes that
a written
statement
of this conclusion will suffice
to meet the variance
condition.
The Board also believes that
the
90 days recommended
by the
Agency
for submission of the disposal program report may be
unnecessarily restrictive,
given
that
the instant variance
alleviates
the
immediate problem.
For this reason the Board will
require
that
the report be submitted within
180 days.
CONCLUSION
Based on
the record before
it,
the Board finds
that
Petitioner would suffer an arbitrary or unreasonable hardship,
not justified
by the environmental impact,
if denied the
requested
relief.
The relief will therefore
be granted,
subject
to conditions.
88—4 7
—6—
ORDER
Petitioner,
the Department of the Army,
is hereby granted
variance from 35
Ill.
Adm.
Code 237.103,
for the waste pile
located at
its Joliet Army Ammunition Plant and as described
in
the attached Opinion,
subject
to the following conditions:
1.
Variance shall expire six months from the date of this
Order.
2.
The open burning shall be conducted
on
a day when the
atmospheric conditions
are expected
to be conducive
to
good smoke dissipation.
3.
The open burning
shall not commence prior
to 10:00
A.M.
and shall be completed
no later
than 2:00 P.M.
4.
Petitioner
shall maintain an adequate staff
of fire
fighting personnel with appropriate equipment at the
open burning
site.
5.
Petitioner shall provide
24 hour advance notification
to
the fire departments of Elwood, Manhattan,
and
Wilmington;
and
to the Agency’s Maywood office
(312/345—
9780).
6.
Petitioner
shall close
all access roads
to the open
burning site until all fires have been completely
extinguished.
7.
Petitioner
shall provide adequate security personnel
to
prevent unauthorized persons
from entering the open
burning
site.
8.
Within 180 days
of the grant of the variance herein,
Petitioner
shall prepare
a written report detailing
the
types of quantities of all other contaminated wastes
remaining
at the J.A.A.P.,
the nature
of the
contamination and a comprehensive program
for waste
disposal.
Said report shall
be sent
to:
Illinois Environmental Protection Agency
Division of Air Pollution Control
Field Operations Section
Post Office Box 19276
Springfield,
Illinois 62794—9276
and
88—48
—7--
Illinois Environmental Protection Agency
Division of Air Pollution Control
Field Operations Section
1701 South First Street
Maywood,
Illinois 60153
8.
Within
45 days of
the date of this Order,
Petitioner
shall execute and
forward
to Peter
B. Orlinsky,
Enforcement Attorney,
Illinois Environmental Protection
Agency,
100 West Randolph Street,
Suite 3—100, Chicago,
Illinois 60601,
a Certification of Acceptance and
Agreement to
be bound
to all terms and conditions of
this variance.
The 45—day period shall
be held
in
abeyance during any period that
this matter
is being
appealed.
Failure
to execute and forward the
Certificate within 45 days renders this variance void
and of
no force and effect as
a shield against
enforcement of
rules from which variance was granted.
The form of said Certification shall
be as
follows:
CERTIFICATION
I
(We),
,
hereby
accept and agree
to
be bound by all terms
and conditions
of the
Order of
the Pollution Control
Board
in PCB 87—161,
April
7,
1988.
Petitioner
Authorized Agent
Title
Date
88—49
—8—
IT
IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk
of
the Illinois Pollution Control
Board,
hereby certify that the above Opinion and Order was
adopted
on
the
7~”-
day of
____________________,
1988,
by
a
vote of
7-0
•
I
~
Dorothy M/’Gunn, Clerk
Illinois Pollution Control Board
88—50