ILLINOIS POLLUTION CONTROL BOARD

February

7,

1972

hAYES

BRANCH

 DRAINAGE DISTRICT

 DOUGLAS COUNTY,

 ILLINOIS

anc~

)

 PCB 71—356,

 71-357

DRAINAGE DISTRICT NO.

 4 OF THE

TOWN

 OF TtJSCOLA, DOUGLAS COUNTY,)

ILLINOIS

v.

ENVIRONMENTAL PROTECTION AGENCY

Messrs.

 John H. Armstrong and Craig Van Meter appeared for the

Petitioners

Mr.

Delbert

D.

 Haschemeyer appeared

 for the Environmental Protection

Agency

OPINION

THE

BOARD

 (by Richard

 Kissel)

The Drainage District No.

 4 of the Town of Tuscola

 (District

No.

4)

 and the Hayes Branch Drainage District of Douglass County

(Hayes District) originally filed a variance petition before

the

Pollution Control Board

 (“Board”)

 in July,

 1971.

 Both Districts

sought a variance from the Environmental Protection Act and from

the

 Rules and Regulations Governing the Control of Air Pollution

(“Rules”)

 in order to dispose of wood and vegetable matter.

(PCB 71-175,

 71-180).

 The Board ordered that hearings be held on

each petition.

 Such

 a hearing was held on August 23,

 1971 in th~

Douglas County Courthouse.

 On September

2,

 1971, with

 the Board’s

adoption of

 the Open Burning Regulations,

 H 70-il,

 the Board dis-

missed the variance petitions

 in PCB

 71-175,

 71-180.

 The Board

directed the petitioners to proceed under

the

 permit provisions

contained

 in the new regulations.

 (See Section

404

 of R70-1l).

Both Districts subsequently

 filed

 a permit. application with the

Division of Air Pollution Control of the Agency.

 On November

10,

1971,

 the Agency refused the Districts

 a permit, stating that

the request “does not meet the requirements or the intent of the

open burning regulations.”

—

611

On November 12 and 15,

 1971,

 District No,

 4 and the Hayes

District filed

 a variance petition with

 the Board..

 No hearing

was scheduled and the Board instead sought an Agency recommenda-

tion.

 On January

26,

 1972,

 the Agency filed its recommendation

and asked that the variance requests be denied.

District No.

 4 and the Hayes District are both quasi-municipal

corporations organized for the purpose of providing an adequate out-

let

 for surface and subsurface drainage of agricultural

 lands.

On

June

22,

 1970,

 the Circuit Court of Douglas County entered an Order

directing

 the District No.

4

 to reconstruct its open drain

 in accord-

ance with plans and specifications prepared by the Soil Conservation

Service and the U.S. Department of Agriculture.

 This Circuit

Court Order included the clearing and removal from the channel and

banks

 of the ditch of trees, brush,

 logs,

 rubbish and debris.

The

District No.

 4 project covered 2.03 miles, containing approximately

5 acres.

 A similar project was ordered by the same Circuit Court

on April

23,

1971

 for the

 Hayes

 I;~istrict; it covered 13.65 miles,

containing about

40

 acres.

 Both Districts proposed to dispose

of

the wood and vegetable matter by open burning on one day.

The

District No.

 4 matter had already been removed

as

 of November,

 1971,

and was merely waiting disposal;

 that of the Hayes District is

still being

 removed.

 The evidence to be considered by the Board

in determining whether

 a variance should be granted consists of

the record in the proceedings PCB 71-175 and PCB 71-180 and several

aerial photographs submitted with the variance petition.

The District No,

 4 project consists

 in removing about 18,300

yards

 of silt

 and clearing the brush from the channel.

(H.

17)

The prr~jectcovers two miles of the channel.

 The lower half mile

and the upper mile of the channel is covered with trees.

 Brush

is blocking

 the channel itself.

(R.

21)

 The District’s engineer

estimated that about 750

 tons

 of material would have to be removed

from within and near the channel.

CR.

46)

 The District investi-

gated

the

 use of an Air Curtain Destructor as an alternative means

of disposal;

 total estimated cost for such

 a method of buraing

was about

 $12,000.

(H.

48)

 Total cost of the District No.

 4 pro-

ject is estimated at about $36,000; use of an Air Curtain Destruc-

tar would raise such cost to $48,000.

The Hayes District project covers 11.4 miles of channel im-

provement.

 This work involves the removal

 of. ~ non—merchantable

type of brush.

 The brush

 is blocking

 the channel at present.

(R.

15)

 The Hayes District project involves the removal of 241,000

yards of dirt.

(R.

16)

 This channel

 is heavily covered from bank

to bank with shrub trees and underbrush.

(H.

21)

 The trees vary

in diameter from

2

 to 10 inches and cover all but

 a half mile of

612

the riverbed.

 The Hayes District similarly investigated the use

of

 an Air Curtain Destructor

as

 a means of disposal;

 total esti-

mated cost for

 the use of this method, including the expense of

digging the holes, would be approximately $100,000.

(H.

42)

Use

of the destructor would involve

 64 burning sites.

(H.

89)

The

District engineer also investigated the burial of the brush and

trees;

 he found such

 a method to be objectionable.

CR.

42)

The

material removed from the channel could not be piled densely in

a

burial trench since it is difficult

 to pack

 down.

 It then must

be covered with earth

 for the farmer to get any use from the

soil banks.

 If the farmer

is

 not able

 to use

 the land,

 the brush

grows

 up wild again.

 In addition, with burial there

is

 a void

among the branches

 and limbs which eventually results in the

ground subsiding when the wood begins

 to decay.

 Sink holes are

then created over each burying pit.

 This

 then creates substan-~

tial hazards when the field

 is farmed such that

 a tractor or

other such vehicle could just slip into

 the sink hole.

 The witness

admitted however that there may be room on

 the existing right-of-

way to bury the debris,

 ‘but that it might prove difficult because

channel widening is

 to occur in the near future.

(R.

44)

 No cost

analysis was conducted to determine the economic feasibility of

burial.

(H.

90)

 To haul

 the debris out of the

 area and bury it

elsewhere would involve trucking it over agricultural

 land,

an

expensive

 and detrimental practice since it results in packing

the ground.

(H.

90)

 The District did not look into further haul-

ing

 and termed it “inconceivable.”

(H.

75)

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 determining 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’~ariance

 versus

 the harm to the public and the petitioner in denying the

variance.

 This is not an equal balance;

 the benefits to be ob-

tained by the public

 and the petitioner must be significantly

greater in allowing the variance, then the harm caused by denying

it.

 Open burning has been prohibited

 in Illinois

 for several years

and

 such

 a ban was reaffirmed with the passage of the Environmental

Protection Act.

 (See Section 9(c)).

 In this

 case, we do not

believe that

the

 two Districts have demonstrated that compliance

with

 the Act and

 the Rules would impose an arbitrary or unreasonable

hardship.

3—613

In general, before beginning

 a channel project,

 the District

will determine

 that

 the benefit

 to be derived from the project is

at least $15

 per acre.

(H.

80)

 Costs for the project at present

are about

 $9 per acre.

 To add an Air Curtain Destructor

 on the

Hayes District project would cost about $10

 per acre more.

 This

would raise

 the effective cost of the project plus disposal with

an Air Curtain Destructor in excess of $15, thereby destroyin~Ythe

cost-benefit ratio.

 The costs are not quite

 as dramatic

for

the

District No.

 4 project;

 the addition of an Air Curtain Destructor

would raise the expense by about one—third.

 Assuming again that

the present cost is

 $10 per acre,

 the effective cost would then

be raised to something

 in excess of

 $13 per acre with

 the use of

an Air Curtain Destructor.

 Though such computations may make

an

Air Curtain Destructor

 an unfeasible technique for disposing of

the wood and debris,

 the various other alternatives were never

adequately explored by the Districts.

 Burying was disregarded

because

 a tractor might ultimately slip into a sink hole which

might result in the future.

 With hauling,the trucking across the

field would lead to packing;

 it is not clear

 to the Board how

packing down by trucks can be any different from packing down by

tractors used to remove the growth from the channel.

 Further,

no cost estimates were conducted of either of these latter alter-

natives;

 rather, they were dismissed as “inconceivable.”

No

consideration was given to constructing

 one Air Curtain Destruc—

tor,

 as opposed to the 64 sites proposed

 for the Hayes District

project.

 With construction minimized, costs would surely be

reduced.

 Note instead,

 the extension

 study of alternatives under-

 taken in Hardwick Brothers Company v.

 Environmental Protection

Agency,

 PCB 71-17

 and Willow Creek Drainage District

 v. Environ-

mental Protection Agency,

PCB

 71-131.

 There is not even

 a pro-

posed schedule and procedure for open burning

 in this

 case except

to say “one time

 only”.

 For all intents and purposes

 then,

the

Districts may well decide to do everything on one day or may spread

it piecemeal over a whole year.

To allow such open burning will impose

 a hardship upon the

residents

 of Tuscola.

 Several

 of the proposed burning sites are

within one mile

 of the Tuscola city limits;

 several others are

not

 far distant therefrom.

 The Districts give

 rio indication that

they would only burn when the prevailing wind conditions would

drive the smoke

 away from the town.

 With the use

 of a Destructor,

burning

 for the Hayes District would take 1170 hours,

 for District

No.

4,

 150 hours.

 Thus,

 though the Destructor is

 a more efficient

burning process,

 it would still take 1320 hours.

3

—

614

In variance cases,

 the burden of proof falls

OF:

 :itioner.

Both Districts have failed to show that adoption of

al

ye

means of disposal would impose an arbitrary or unreaso~

 hardship

upon their operations.

 The variance

 is hereby denied.

This denial will not foreclose the Districts from coring to

the Board with new evidence on the alternative means of disposal

as

compared to

 the harm caused by the burning.

 We recognize

 that the

time grows short if the Districts

are

 to be allowed

 to open burn,

and we suggest, therefore,

 that if the Districts wish

 to file

 a new

petition that

 it be done

 soon

 and contain all the

 facts, under oath,

consistent with this decision,on which the Board

 can make

 a proper

decision.

This opinion constitutes

the

 findings

 of fact and conclusions

of law of

 the Board.

Samuel Aldrich dissents from the opinion of

 the Board.

I,

 Christan L. Moffett, Clerk of the Pollution Control Board,

certify that the Board adopted the above Opinion and Qder this

day of February, 1972, by

 a vote of

~

D~’~

Christan

 L. Moff~tt,

Clerk of the Board

3— 615