ILLINOIS POLLUTION CONTROL BOARD
September
6,
1972
CITY OF GALENA
V.
)
PCB 72—122
ENVIRONMENTAL PROTECTION AGENCY
Martin D.
Hill for the City of Galena;
Roger L. Horwitz, Assistant Attorney General,
for the Environ-
mental Protection Agency.
OPINION AND ORDER OF THE BOARD
(by Mr. Parker):
The City of Galena,
a city of about 3,300 population, seeks
a variance from the existing law and open burning regulations to
permit open burning of fallen trees and wooden underbrush located
in a flood plain area along the Galena River.
The original petition took the form of a letter to the
Agency from the Galena City Manager dated March 24,
1972.
By
Interim Order dated April
4,
1972 this Board required an amended
petition to be filed including information on alternative means
of disposal of
the trees and brush and the cost of those means.
Such an amended petition was filed, this time taking the form
of
a letter from the Galena City Manager to the Board dated
April
7,
1972.
The area in question constitutes about
22 acres which the
City of Galena began clearing of trees and brush in 1969 pursuant
to an Army Corps of Engineers recommendation
(R.
26)
.
The work
was not completed,
however, because
of substantial problems
encountered in disposing of the cleared material.
The City pres-
ently proposes to complete the project and then use the area for
recreation purposes.
At the public hearing, held June 27,
1972,
the City Manager
described the 22 acre area as made up of four regions of different
characteristics.
The north end region had been covered with dead
elm trees, about 20-30
percent of which were lying on spongy
ground.
Most of the trees in this region have been cut down and
bunched into several piles
(R.
13).
A second region,
of similar
character
to the first, has fewer dead elm trees and more small,
young trees
(R.
14) which have been cut down
(R. 17)~ An old
railroad right of way forms part of
a third region, drier than
the first two, containing box elder trees of 10 to
15 foot height
and covered with underbrush
(R.
14).
Some of these trees have
been cut down and piled
(R.
17)
.
The fourth is a cliff region
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containing
a large
number
of trees of all sizes and shapes, and
accompanying underbrush
(R.
15).
All of the cut trees in the 22 acre area are still on the
site,
some in piles and some strewn around the ground
(R.
17).
The City plan
is to remove about 90 percent of the trees and brush
from the first three regions, grade these regions
so that rain-
water flows
to instead of away from the river, and seed them with
grass
(R.
15).
The fourth
(cliff) region will be thinned out
(R.
15)
,
dirt filled and seeded
(R.
16).
Petitioner seeks
a variance to burn not only the existing
piles of cut and dead trees and brush, but additional piles of
trees and brush which will result from completion of the land
clearance project
(R.
18).
There are presently about seven piles
of elmsand box elders, and an estimated additional dozen
piles of box elders will result from the clearance operation
(R.
18). Each pile is 12 to
15 feet in diameter and
8 to
10 feet
high
(R.
18).
The piles to be burned will include diseased as
well as nondiseased trees
(R.
19).
The record includeb evidence as
to the alternatives
to
open burning, several of which must be summarily dismissed.
Thus,
the cut trees and brush cannot simply be left on the ground
(R.
20)
since this would constitute disposing of refuse at
a site
not approved for use as a landfill,
a flood hazard would result,
and the Cityts plan would be thwarted, since the land would not
be useful for recr~ation. Likewise, burying
the cut refuse on
the site,
even if the high ground water level would permit such
burial, would also be b~rredfor similar reasons.
Use of an air curtain destructor was considered but rejected
(R.
21,
109).
It would be impossible to operate such a device
at the site because the ground water level
is so near the surface
that the ditch which must be provided beneath the device would
fill with ground water, and the destructor could not be cleaned
(R.
21)
.
Installation of such a destructor at a site away from
the flood plain was considered
(R.
109) but apparently rejected
because of the cost of hauling as well as the high cost of pur-
chasing the device.
The only feasible disposal alternative to open burning
appears from the record to be chipping the material
(cutting it
into small pieces)
on the site and then hauling it away to an
approved dump.
The local tree trimmer testified
CR.
98, 103~-l05)
that he would be able to cut down the standing trees, chip them
and haul them away for approximately $1200.
($30. per hour total
for three men, eight hours per day for an estimated five days).
While his chipping equipment cannot handle trees larger than six
inches in diameter, which means that the larger trees on the site
could not be handled in this way
(R.
98, 104),
the tree trimmer
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indicated that he would include cutting and hauling of the
larger trees in his five day cost estimate
(R. 104—105).
As for the cut trees and other wood debris presently
lying on the ground
(which was not included in the $1,200
estimate)
,
the tree trimmer said it would cost
“a
fortune’t
to cut this up
(R.
99,
103).
The City Manager’s estimate of the
cost of the overall chipping and hauling alternative was a
minimum of $10,000
(R.
57).
While this estimate was admittedly
not based on cutting,
loading and hauling time studies
(R.
57),
the estimate was not substantially undermined on cross-examination
and we note that the Agency did not come forth with any contrary
evidence of its own on the point.*
The City Fire Chief testified that no residences or businesses
are located near the flood plain area and that there would be no
safety hazard created by the open burning should the variance
be granted
(R.
83).
He also described the precautions that
would be taken to insure proper control of the burning, including
the stationing
of men and tank trucks in the area
(R.
87)
.
The
entire
22
acre tract could be reached by water hoses connected
to a nearby hydrant
(R.
89-90).
One pile at a time would be
burned; possibly three or four piles could be burned in one day
(R.
95).
Ideally, the burning would be conducted when little
or no wind was present
(R.
94,
95).
Several citizens testified in opposition to the petition
at the hearing, mainly on grounds that open burning is generally
undesirable
(R. 119—120, 124—125,
129, 130—132,
133).
In its
recommendation filed the day before the public hearing, the
Agency stated that the variance request should be denied because
the City’s petitions had not presented sufficient information
for the Agency “to determine whether the Petitioner’s conclu-
sions are accurate”
(p.
3)
The Agency alternatively recommended
if the variance were granted that the burning be conducted only
under favorable dispersion conditions and that the nearby**
former City dump be closed with two feet of cover prior
to
commencement of burning.
Turning now to whether the variance should be granted, we
believe that the cutting and hauling alternative as concerns
the trees which are presently standing is
a viable one,
and that
the open burning request
as to these trees should be denied.
The
project is technically feasible and the $1,200 cost estimate
seems to us to be well within the range of what .the City can
afford.
Accordingly we find that petitioner has failed to show
that an arbitrary or unreasonable hardship would exist sufficient
to justify open burning of the presently standing trees, and the
petition is denied to this extent.
*
The Agency’s “Final Statement” filed after the hearing argues
that “the total
area could have been cut for about $1,500” (p.
3)
but we are unable to verify this from any evidence in the record.
**
An Agency engineer testified
CR.
116-117)
that the former dump
containing general refuse is located about 150 feet from the
presently existing wood piles in the flood plain area.
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5
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355
On the other hand, we believe petitioner has shown that
an unreasonable hardship does exist sufficient
to justify open
burning of the trees and brush which are presently lying on the
ground.
The only practical alternative to open burning,
i.e.
cutting, chipping and hauling,
involves an expenditure which
would, on the record before us, work an unreasonable hardship on
the
City.
The funds available to Galena for this purpose are
sharply limited
(see
R.
23,
30, 51—52,
65).
We are persuaded
that it would he most difficult for
the City to justify spending
the
$10,000 minimum that would
be
necessary to cut, chip and
haul
this
material.
Looking at the other side of the coin,
the record does not
in our
view
show
that substantial harm to the public would
result from
limited open burning of the trees and brush lying on
the ground.
The
burning site
is remote from dwellings and busi-
nesses,
and we
are impressed with the precautions that will be
taken by the City Fire Chief and his men to insure proper control
of the burning.
The
record contains several references to the
possibility of an air inversion impeding dispersion of combustin
products
(e.g.
see
R.
87—88, 95—96,
121,
136),
but we do not
regard the evidence on the point as competent or persuasive.
We
do believe, however,
that
the
burning to be permitted
as described herein should be carried out in accordance with
certain conditions, including those recommended by the Agency,
as set forth below.
Ihis opinion constitutes the Board’s findings of fact and
conclusions of law.
ORDER
1.
The
petition is denied as
to the open burning of
trees and brush
which
is presently standing.
2.
The petition is granted as to
the
open burning at
the site of trees and brush presently lying on the
ground, provided that the following conditions are
met:
a.
Materials to be burned shall be strictly limited
to trees and brush presently lying on the ground.
b.
Only one pile
is to be burned at
a time and the
burning shall be conducted only during daytime hours.
c.
The open burning shall be conducted only under
favorable dispersion conditions.
d.
The former Galena
City
dump shall be properly
and finally closed with two feet of cover prior
to
commencing the open burning.
e.
The City Fire Chief or his designee and his men
shall be
in
attendance at all times when open burning
is taking place.
The burning site
shall be provided with
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356
adequate fire protection and with such equipment
as necessary to control accidental fires.
f.
The City shall notify the Agency’s Regional
Office
(4302 North Main, Rockford, Illinois 61103,
815/877-8051) prior to the first burning and there-
after
so that the Agency may make an on—site
inspection during each burning.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order was
ad9pted on the
4~”
day of~
~
~
,
1972 by
a vote of
-q
to
~.
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