ILLINOIS POLLUTION CONTROL BOARD

December 5, 1972

N.

 E. FINCH COMPANY

#72-349

v.

ENVIRONMENTAL PROTECTION AGENCY

)

WILSON C. WASHKUHN, ON BEHALF OF PETITIONER

PRESCOTT E. BLOOM, SPECIAL ASST. ATTORNEY GENERAL, ON BEHALF

OF ENVIRONMENTAL PROTECTION AGENCY

OPINION OF THE BOARD

 (BY SAMUEL T.

 LAWTON,

 JR.)

Petition for variance was filed by

N.

 E. Finch Company request-

ing a variance from Rule 504(a~(4)(iii)

 of Chapter

 2 of the Pollution

Regulations, to permit the burning of approximately 70,000 tons of

landscape waste consisting primarily of leaves and underbrush.

Rule 504 relates to permits for open burning.

 Rule 504(a) (4) (iii)

states that the Environmental Protection Agency may grant permits

for open burning for the destruction of landscape waste provided

that burning shall not occur “after July 1,

 1972, except with the

aid of an air curtain destructor

 or comparable device to reduce

contaminant

emissions

 substantially”.

Petitioner

 is a general contractor engaging in land clearing

operations,

 in this instance, the construction of a cooling lake

near Canton,

 Illinois, Fulton County, for an electrical power genera-

ting station.

 Petitioner’s contractual obligations apparently include

clearing brush, felling trees and the disposal of resultant waste.

Petitioner alleges that the following factors make the use

of an air curtain destructor unreasonable:

1.

 The topography of the area makes it virtually impossible

to use heavy equipment and attempts to use such equip-

ment would endanger the safety of its construction crew;

2.

 Further excavation would loosen the ground surface,

encouraging erosion and release of particulate matter;

3.

 Burning elsewhere would create more environmental

impact since the proposed site is isolated from the

general population

 (its former residents having been

re-located);

4.

 Hauling the debris elsewhere would create traffic problems;

6

—

401

5.

 The natural topography of the area,

 together with

the

employment of

 the blower, had the same effect

in abating smoke emissions as an air curtain destruc—

tor;

6.

 The cost of disposal of the landscape waste

by

air

curtain destructor

 is prohibitive;

7.

 The proposed use of mobile air blowers would result

in efficiency equal

 to or superior to that provided

 air curtain destructors.

The

record included testimony that the work site

 is approx-

imately eight miles south and east of Canton, Illinois

 (R.8), and

consists of approximately

 1,700 acres,

 the greater portion of which

is ravine-like with

 (R.lO)

 heavily forested gullies

 (R.l0)

 Peti-

tioner’s method of disposal until

 July

1,

 1972 was open burning

with blowers under permit from the Agency

 (R. 12-14).

The

blowers petitioner uses are driven by 12-1/2 horse power

engines and contain fuel injectors

 (R15 and R.37).

 The burning

was done

in the

bottom of

 the gullies

in

small piles

 (R.12).

This

procedure was followed by petitioner because the subject

land

is

often marshy, and it was anticipated that the clearing

operation will contribute

 to this condition, making movement

by

heavy equipment difficult

(B.

27)

 Petitioner contends that

its

procedure created a “better burn” but offer no data to support

this contention(R.26)

Petitioner’s witness stated

that

he

had

had no experience

with

air curtain destructors and thus could not compare their effi—

ciency

with

his

 proposed method of disposal

(B.

 32).

 Experts for

the Agency testified that they believe that the proposed method

of disposal would be far less efficient

than

the use of

an

air

curtain destructor allowing much larger particulate emissions

(B.

 56—57—68—69—8 5)

Petitioner did not present the evidence relevant to questions

of environmental impact, and offered no comparative cost figures,

choosing to conclude that the air curtain destructor would be a

prohibitively expensive and time-consuming method of disposal

(R.24,

 et. seq.).

 In a site inspection and a subsequent confer-

ence

between

 the parties,

 the petitioner declined to estimate the

dollar

impact

of disposal by air curtain destructor

(B.

 ~7-79),

In Hayes Branch Drainage District of Douglas County,

Illinois and Drainage District No.

4

 of the Town of

 Tuscola,

56~glas

 County,

 Illinois v. Environmental Protection Agency,

~L#7l356,

 71—357,

 3 PCB 611—13

 (February

7,

 1972),

we

stated:

—2—

—

402

“We must then turn to the question of whether the

variance should be granted.

 In order for a petitioner

to be granted a variance by the Board he must prove

that compliance with the law will create an arbitrary

or unreasonable hardship.

 (See Section

 35 of the Act.)

This Board has consistently held that the question of

det.ermining whether an arbitrary or unreasonable hardship

exists

 is determined

 by a balancing process,

 that is,

balancing the benefits to the petitioner and the public

in granting the variance versus the harm to the public

and the petitioner

 in denying the variance.

 This

 is not

equal

balance;

 the benefits

 to be obtained

by

 the public

and

the

petitioner

must

significantly

greater

allowing

the variance,

 then the harm caused by denying

it.

 Open

burning has been prohibitedin Illinois for severalyears

and such a ban was reaffirmed with the passage of the

Environmental Protection Act.

 (See Section

 9 (c))

In this

 case, petitioner has not sustained the burden of proving an

arbitrary or unreasonable hardshic.

 The testimony with resrect to

inordinate costs resulting from the use of an air curtain destructor

is

 purely speculative.

 No evidence of the cost of acquisition,

operation or movement of trees consequential

 to employment

 of such

facility, has been presented.

 We must likewise conclude that the

blower device employed by cetition is not a “comparable device”

entitling petitioner

 to a permit under the regulations,

 since a

variance of the regulation

 is sought.

 We must therefore deny the

petition for variance.

 On the record,

 this case presents none of

the peculiar hardships present in our recent grant of open burning

variances

City

Galena

Environmental

Protection

Agency,

~72-l22,

 5 PCB

 (September

6,

 1972), and City of North Chicago v.

Environmental Protection Agency,

 #72-398,

 5 PCB

 (November

8,

1972)

 or in Hayes Branch Drainage District,

 etc.,

 EPA,

 Supra.

This opinion constitutes the findings of fact and conclusions

of

law

the

Board.

IT IS THE ORDER of the Pollution Control Board that the petition

for variance be denied.

I,

 Christan Moffett, Clerk of

 the Poll1:~tior1Control Board, certify

that the above Opinion was entered on the ~

 day of ~

1972,

by

vote

‘~/

:~k~

—3—

—

403