ILLINOIS POLLUTION CONTROL
BOARD
February 8, 1971
CITY OF
WINCHESTER
)
)
v.
)
PCBI7O—37
)
ENVIRONMENTAL PROTECTION AGENCY)
CITY OF HERRIN
)
)
v.
)
PCB#70—42
)
ENVIRONMENTAL PROTECTION AGENCY)
Opinion of the Board (by Mr. Currie):
Both cities petition us for variances to permit the burning
of trees; we grant both petitions in part, subject to conditions
specified below.
The Rules and Regulations Governing the Cohtrol of Air Pollu-
tion, adopted by the old Air Pollution Control Doatd in 1965, out-
lawed most open burning but not the burning of diseased trees,
unless in an ~.nappropriatelocation (Rule 2-1.8). Section 9
(a)
of the Environmental Protection Act, effective July 1, 1970, flatly
outlaws all open burning of refuse except as exeinpte~by regulations
of the Pollution Control board. Section 49 of the Act preserves
existing regulations until modified by the Board.
We have not had occasion tc decide whether, because these reg-
ulations are preserved by section 49, the old exemption for diseased
trees qualifies as a Pollution Control Board exception to the section
9 (c) ban on open burning. We have held hearings on a proposal
to allow such burning on the basis of a permit granted by the Agency
on a showing that conditions are such as to ninimize the advarse
effects of pollution (#R70-ll), and final action on that proposal
is in the near future. In the meantite we have dismissed one
variance petition relating to tree burning because it did net
allege facts sufficient to justify favorable action (City of Jack-
sonville v. EPA, 170-30, decided January 27, 1971), and we have
postponed action on the present cases pending the outcome of the
rule—naking proceeding.
The proposal
to allow burning
of diseased trees on a perrtit
basis reflects the Board’s belief that burning may be necessary
in order to avoid the further spreac of disease, whLch has bncoa.e a
serious threat to eln,s, for example,throughout the State and elsewhere,
and that under
proper con~itions
the contana.nants
emitted
from such
burning
are likely not to create a serious pollution problem. This
1-199
position contrasts
with
our holding, in Swords
v.
EPA (PCB#70—6,
decided September 2, 1970) refusing -a variance for open burning of
non—infectious wood wastes
in
the
absence
of strict proof of an
absence of alternatives. It
was
in line with these considerations of
probable lack of serious harm and probable necessity for open burning,
and of the pendency of our rule-making proceeding in ~R70-l1, that
the Board agreed to await the recommendations of the Agency in the
two present cases arid to proceed without hearing.
The Agency recommends that both variances be granted subject
to
certain conditions because the burning sites are so situated as to
minimize pollution.
But no variance can be granted without proof
that compliance would impose hardship;
the hardship complained of
seems to consist of the argument that it would he more costly to
find an alternative
disposal means.
This we have held in the Swords
case, supra to be insufficient.
Insofar as diseased trees are
concerned, we believe the risk of further infection constitutes
sufficient
hardship in lioht
of
the relatively minor harm that will
be caused by burning.
But thg petitions are
not
limited to diseased
trees,
and we cannot cermit: the burning of other trees without
further proof since this rationale
applies only in the case of
disease,
especially
since in the Winchester case the Agency reported
a neighbor had cornp~ained about smoke and odor from past burning
and opposed burning in the future.
We
apologize for the delay in handling this matter; we might
schedule a hearing to explore the facts
il time
permitted, but the
statutory
requirement of a decision within 90 days (Environmental
Protection Act, section
38)
precludes that course
now. We
shall be
Wllllng to reconsider the limitation
to
diseased trees if new petitions
arc filed requesting hearings in which adequate proof of hardship
is made.
But the ban on open burning expresses a statutory
policy
that extra expense i~s to he incurred if necessary in order to prevent
the fouling of the air; this policy is not tab a frustrated
by the
allegation
that a few extra dollars must be spent to avoid pollution.
This opinion constitutes
the Board’s findings of fact and
conclusions of law.
ORt)EE; 8PCB7O— 37, CITY CF WINCHESTER v. EPA
The Board having considered the petition
and
the recommendation
of the Agency, the petition
for a varaunce to permit the open
burning of trees is granted subject to the following conditions:
1. Only trees, logs, and limbs infected with infectious
disease
may be burned.
2. Only trees, logs,
arid limbs
from the City of Winchester
may
he
burned.
3,
Burning shall
he
done at toe aite descdihed in
the
petition;
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200
no
more than one day per week; only between noon and four
p.m.
only
when
wind soced is between five arid twenty
m.p.h.
;
only when the wind is from the western half of the
compass; and
only when the sky is not overcast.
4. No fuel of lesser quality (smokier) than number 2 fuel
oil shall be used to promote combustion.
5.
All burning shall be under the
direct supervision of a
City employee.
6. The period of the
variance is
limited to six months.
7.
This order is without prejudice to a subsequent request
for a variance after hearing to permit the burning of
additional
material.
ORDER: 4b?CB70—42 CITY OF IIERRIN
V.
EPA
The Board having considered the petition
and
the recommendation
he Agency,
the petition
for a variance
to
permi L the open burning
rees is
granted subject
to the following
condirions:
1. Only trees, logs, and limbs infected with
infectious disease
may be burned.
2. Only trees, logs, and limbs
from the
City of Jierrin may be
burned.
3. Burning shall be done at the site described in the petition;
no more than one day per week; on v between noon and four
p.m.
;
only when wind speed is between
five and
twenty m
.
p. b
only when the
wind is
from
the eastern iiaf of the
compass;
and only
when the sky
is
not
overcast.
4.
No
fuel of
lesser quality (smokier)
than num:er 2 fuel oil
shall be
used
to promote combustion.
5. All burning shall he under the direct supervision
of a
City employee.
6. The period of the variance is limited to six months.
7. A fence with a lockable eate shall be erected and maintained
so as to prevent unauthorized entry
to
the burning site,
8. This order is without prejudice to a subsecucnt request:
1
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201
for a variance after hearing to permit the burning of
additional
material.
I,
Regina F. Ryan, dc hereby
the
above opinions this; /
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