ILLINOIS
POLLUTION CONTROL BOARD
July
8,
1971
F,D. DECKER d/b/a/
DECKER SAWMILL
v.
)
PCB
71-73
ENVIRONMENTAL
PROTECTION
AGENCY
Douglas
Marti, Attorney for Decker Sawmill.
Lee Kane Zell~,Attorney
for Environmental Protection Agency.
Opinion of the Board
(by Mr. Kissel):
Decker Sawmill
(Decker)
filed
a petition for variance
with the Environmental Protection Agency
(Agency)
and
the
Board on April
12,
1971 in which it requested that it be
given until March
1,
1972 to purchase equipment
for chipping
wood slabs,
and until that time
it sought permission to burn
the wood slabs in the open.
The Agency filed its recornmenda-
tion on May
10, 1971 asking that the petition for variance
be denied.
A hearing on this matter was held on May
11,
1971
in Greenville,
Illinois
on the petition before Carl Kasten,
hearing officer.
Decker operates
a sawmill
at
a location about one quar-
ter of a mile northwest of Greenville,
Illinois at the inter-
section of Routes 140 and 127,
and adjacent to the east fork
of Shoal Creek.
The plant has been located at that site for
the last 18 months,
In the operation of his business,
Decker
receives various kinds
of wood,
from good hard woods such as
white oak and walnut, to
low grade
lumber, which he cuts into
boards
for sale.
As
a result of
this operation, Decker pro-
duces basically two kinds of waste product
—
sawdust and wood
slabs,
The sawdust is readily useable by local dairy farmers
for bedding in the stalls of the dairy cattle.
The wood slabs,
however,
are not as easily useable by third parties in their
present
form,
Decker
has been burning six to eight tons of
these
slabs each day in the open since he has been on the pres-
ent site.
2 —93
There are really three alternatives
(other than open
burning)
for disposing of the wood slabs:
1) salvaging by
chipping the wood;
2) burning in incinerators; and
3) land-
fill,
Each of these alternatives was adequately explored in
the
record.
In the salvaging operation, Decker would debark
and
chip
the
waste wood and then sell the chips and bark.
The cost of the chipper and debarker is
estimated
to be ap-
proximately $70,000
(see Pet,
Ex.
3).
But
Dekker will
realize some income
from the sale of the
chips and
the bark.
(Chips
sell
for
$14.60
per
oven-dried
ton).
Decker
says
that he cannot install the chipper and debarker in his pres-
ent site due
to lack of space and due to an installation cost
of $10,000
(included in the above cost) which would have to
be paid again in 1972 when Decker moves to a new site
(which
is nearby and about twice the size of the present site).
The chipper and debarker would also benefit Decker because
he would realize
a
savincrs in saw blades and the operation
would be speedier.
The second alternative, incinerators,
would
cost
about
$92,000
and
would
result
in no side bene-
fits
to Decker.
The cost
(see Pet,
Ex,
4) would cover the
purchase
and installation of an incinerator which would
burn
about
3000
pounds
per
hour,
A
smaller
incinerator
would indeed cost less, but would have to be operated around
the
clock,
and
therefore,
additional
personnel
would
have
to be hired to operate the incinerator.
This would make
the cost of
a smaller incinerator roughly the same
as
a
large one.
The third alternative, landfill, would be
the
costliest.
One witness testified that the cost of disposing
of
16
to 18 tons of wood slabs per day would be $124,500 per
year,
Decker, however, only generated about
6 to
8 tons
of
wood slabs per day, but the testimony still has validity
because the only difference would seem to be
the size of the
hauling equipment,
and the amount of land needed.
This
method of disposal would not result in any return to Decker,
Before discussing the petition for variance,
it is
necessary
to deal with
a constitutional question raise,d by
Decker~s attorney.
Essentially, Decker~sattorney demanded
a trial by jury,
and stated that his client~sright to due
process would be violated if the variance were denied.
The
Board has dealt with
all of these issues previously in the
Granite City Steel case, EPA
v. Granite CitJ Steel, PCB
70-34,
We held there,
and reaffirm here,
that the procedural safe-
guards provided all petitioners and respondents in the Environ-
mental Protection Act and
the Rules and Regulations of the
2—94
Board meet every constitutional requirement.
The petitioner
in this case had more than an adequate opportunity to be heard.
He was
in no way limited to the quantity of evidence he wished
to produce.
He was treated fairly and equitably as the statute
and the constitution require.
We therefore hold that the peti-
tioner~srights were not violated and that it was not error to
provide for the hearing of this case before
a hearing officer
and not
a full
jury.
We now turn to the substantive
issues of this
case,
The
Environmental Protection Act requires that any person seeking
a variance must prove that compliance with the law would
ira—
pose an “arbitrary or unreasonable hardship”.
We have con-
sistently held that in determining what an “arbitrary or un—
reasonable hardship”
is we will employ
a balancing process,
balancing the benefits and detriments
to the community at
large against the benefits and detriments
to the person seek-
ing the variance,
We have also
said that this is not an
equal balance, but Tather
the benefits to the person seeking
the variance must substantially outweigh the detriments
to
the community at large.
In the instant case, we have on the
one hand the financial hardship which would be imposed on
Decker,
the industries and the farmers in the surrounding area
to be weighed against the harm to be suffered by
the public as
a result of the emission of contaminants into the air from the
open burning of wood slabs.
In this
case,
it seems
that
if
the Board were to deny the variance, Decker would have
two basic
alternatives:
first,
he could close his business,
or second,
he could install some kind of device
(incinerator,
or chipper
and debarker)
or landfill to avoid any open burning.
Both
alternatives
are expensive either
to Decker himself or
to the
community.
If he were to close his business,
farmers would
not have needed sawdust for the dairy farms,
the low grade
logs would be left in the woods
to rot because there would be
no mill close by
to accept these,
the better wood would be
more expensive to haul because the nearest mill
is about
70
miles farther away than Decker~s mill,
and finally,
six men
would be put out of work,
This alternative is not called for
by
the evidence,
The open burning that has been done by
Decker has simply not affected the neighbors,
and they so
testified.
One neighbor lived as close as
750 feet and he
was
not bothered by the burning at all and was not familiar
with anyone nearby that was bothered by it.
2—95
Notwithstanding the
fact that present neighbors are
not bothered by the contaminants which come from open burning,
we
feel that it should be
the policy of this Board to halt
such burning wherever technically and economically feasible.
Such
is the case here,
Decker has any number of alternate
methods
of
disposal
of
the
wood
slabs
—
incineration, chipping
and hauling,
or landfill,
While these methods are certainly
technically feasible,
there is
a real question of Decker’s
ability to pay for the various alternatives.
Decker has
been operating this sawmill on this site for about 18 months,
and his record of earnings has been less than spectacular,
although typical
for newl7-started sawmills,
In 1969 he
sustained
a loss of $10,000 which was
for only
six months of
that year.
In 1970 he experienced
a profit of
$2,900,
and
anticipates
in 1971
to earn
a net profit of $15,000.
His
indebtedness presently is about
$40,000, but he hopes to have
this reduced to $17,000 by March
1,
1972,
His present finan-
cial condition
is
not at the level where he can presently afford
large expenditures
of money.
He did apply
for a loan with
two
banks and was turned down by both
(see Pet.
Ex,
8 and 9),
One
bank official
said that his bank was unable to make the loan
because “your operations simply will not produce enough revenue
to repay
the debt load”
(Pet.
Ex,
9).
Decker himself seems
optimistic
about
his
ability
to
move
to
a
new
location
and
install
a
chipper
and
debarker
there
by
March
1,
1972,
The
question we must decide is whether to require the move earlier
than that.
We think
not,
Not only will Decker be
better able
to pay for the equipment and the move at that time, but the
move
now
would
cause
an
additional
financial
loss
because
the
stacked wood would rot.
We therefore
feel that the petition
for variance should be granted, under the conditions outlined
below,
allowing the open burning of not more than
8 tons of
wood slabs per day during the next few months
(actually to
March
1,
1972)
until
Decker
can
move
and
operate
on
the
new
site with the chipper and debarker or with whatever other means
Decker chooses to employ to secure compliance with the Act and
the
Rules
and
Regulations
promulgated
thereunder.
Since
there
is
some
question
about
Decker’s
ability
to
afford the cost of the chipper and debarker, within ninety
(90)
days
of this
order, Decker shall
file with the Board and the
Agency an exact timetable
for the move and
for the purchase
and installation
of the chipper and debarker~or of whatever
2
—
96
other means Decker intends to use to bring its operation into
compliance with the Environmental Protection Act and the Rules
and Regulations promulgated thereunder.
In this submission,
Decker shall include
a report of the negotiations it has had
with financial institutions in order to obtain finances
for
purchase of equipment.
In addition, Decker shall report to
the Board and the Agency before December 3l~ 1971 the specific
monetary
commitment
it
has
obtained
to
finance
the
purchase
of
the equipment.
Included in this report will be
a report on
the negotiations which Decker has had with financial institu-
tions
in order to obtain finances for the purchase of
the
equipment.
In addition, Decker shall report
to the Board and
to the Agency before December
31,
1971
the specific financial
commitment which Decker has received to finance the purchase
of the equipment.
As
a
condition
for
the
variance,
Decker
must,
within
seven
(7)
days
after
the
date
of
this
order,
remove
all
the
ashes
which
are presently found on his
site
and which
are
a
result of previous burning.
Further, Decker shall remove
whatever
further
ashes
accumulated,
within
a
very
short
time
after burning occurs.
This
opinion
constitutes
the
Board’s
findings
of
fact
and
conclusions
of
law.
ORDER
It is the order of the Board tnat the request of Decker
Sawmill
for
a variance be granted subject to the following
conditions:
1)
Open burning of
up to eight
(8)
tons
of wood slabs
per
day may continue on the present site until March
1,
1972.
Open burning shall not be conducted on the present site after
the above date
and shall never be conducted on the new site,
2)
Within ninety
(90)
days of
the entry of this order,
Decker shall file with the Board and the Agency an exact time-
table
for the move and
for the purchase and installation of the
chipper and debarker or of whatever other means Decker intends
2 —97
to
use
to
secure
compliance
with
the
Act
and
with
the
Rules
and
Regulations
promulgated
thereunder.
In
this
submission,
Decker
shall
include
a
report
on
the
negotiations
it
has
had
with
financial
institutions
in order
to obtain finances
for
the purchase of equipment.
By December
31,
1971,
Decker shall
report to the Board and the Agency on the specific financial
commitments
it has obtained to finance the purchase of equip-
ment.
3)
Within seven
(7)
days of the entry of the order,
Decker
shall
remove
all
ashes
presently
found~:onthe present
site.
All further ashes generated by the open burning con-
ducted until March
1,
1972 shah
be expeditiously removed.
4)
Decker shall post with the Environmental Protec-
tion Agency on or before August
10,
1971,
a personal bond in
the amount of
$70,000, which sum shall be forfeited to the
State of Illinois
in the event that the conditions of the
order are violated.
5)
During the period
this variance is in effect,
Decker Sawmill shall not increase
the pollutional nature of
the discharge
either in strength or volume.
6)
The failure of the petitioner to adhere to any
of the conditions of this order shall be grounds for revoca-
tion of the variance.
I,
Regina
E.
Ryan, Clerk of the Pollution Control Board,
certify that the Board adopted the above opinion and order this
~
day of ~~~L____’
1971,
/
I
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