ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    January
    27,
    1971
    CITY
    OF
    JACKSONVILLE
    )
    )
    )
    v.
    )
    170—30
    )
    )
    ENVIRONMENTAL
    PROTECTION
    AGENCY
    )
    Opinion
    of
    the
    Board
    (by Mr. Currie):
    On November 4, 1970, the City of Jacksonville filed with this
    Board a petition seeking a variance to permit the open burning of
    “three to four truckloads” of diseased elm trees daily in the
    landfill located “in the ccuntry several miles north of the City
    of Jacksonville.”
    The Environmental Protection Act, §
    9
    (c),
    forbids
    all open burning of refuse, subject to the Board’s power
    to adopt regulations exempting certain types of burning that do
    not cause harm.
    The regulations or the old Air Pcllution Control
    Board did nbt outlaw the burning of diseased trees; the status
    of these regulations under the present statute is uncertain.
    We
    have held hearings on a proposal to allow tree burning on the
    basis of a permit
    from
    the Environmental Protection Agency, after
    a showing that the operation will be so conducted as to minimIze
    pollution
    (#
    R70—ll).
    In order to obtain a variance a petitioner must show that
    compliance with the law would impose an “arbItrary or unreasonable
    hardship.”
    We have had occasion to note the high burden this
    places on the petitioner.
    See EPA v. Lindgren Foundry Co.,
    #70—1 (1970).
    The Environmental Protection Agency asks us to dismiss the
    petition for failure to allege the elements of hardship that
    our rules require.
    Rule 401 of the Board’s Procedural Rules (PCB
    Regs. Ch. 1, Rule 401) requires the petitioner to include, among
    other things,
    a concise statement of why the petitioner believes
    that compliance with the provision from which
    variance is sought would Impose an arbitrary or
    unreasonable hardship, including a description
    of the costs that compliance would impose on the
    petitioner and others and of the injury that the
    ~‘ant of the variance would impose on the public.
    I
    —
    177
    Rule 405 (b)(l) authorizes the Board to dismiss a petition
    without hearing whenever it determines “that even if all the facts
    alleged in the petition are true, the petitioner is not entitled
    to a variance.”
    We voted November 10 to hold a hearing, and we delayed the
    hearing while awaiting the Agency’s recommendation.
    That
    recommendation——the motion to dIsmiss——convinces us that no
    hearing is necessary..
    The petition alleges that the disposal
    of diseased elms is a “financial burden”; that “there is not
    adequate physical space at the present landfill for disposal
    of these trees by means other than burning”; that the landfill
    is “in the country”; and that granting the variance “would not
    impose any hardship or injury on the public.”
    These allegations
    are insufficient.
    The statement that there would be no injury to the public
    is purely conclusory; a petitioner cannot obtain relief by pleading
    the ultimate conclusion in the absence of supporting facts.
    The
    only fact alleged relevant to the question of injury from the
    proposed burning is that the landfill is “in the country”; thts
    does not prove there are no people around to be Injured.
    There
    is no allegation of the kind or extent of expected emissions or
    of the distance to inhabited areas or traveled roads.
    We
    cannot without more facts determine whether or not the proposed
    burning will cause injury.
    Nor are
    there
    adequate
    allegations
    on
    which
    we
    could
    base
    a
    determInation
    of
    the
    degree
    of
    hardshIp
    the
    City
    would
    suffer
    if It could not burn these trees at the proposed site.
    That the
    disposal of diseased trees is “a fInancIal burden” does not prove
    how much it would cost to rind an alternative to open burning;
    that there
    is inadequatc’ space in the present landfill to bury
    the trees does not prove that no other space can be had, how
    much it would cost, or tihether an incInerator or other device
    could be obtained to dl3pose of the trees without the same
    emissions.
    In short, even if
    a accepted as true all factual allegations
    or
    the petition, we coufl not find proof that compliance with the
    law tbould impose an arbitrary or unreasonable hardship.
    If it were not for sectIon 38 of the Act, we should be in-
    clIned to allow an
    asaenci:ient of the petition, or even to hold a
    hearing, to correct the above deficiencies.
    But that section
    provides that if the Bard does not take final action within 90
    days after ffling of a
    ariance petition “the petitioner may
    deem the request
    grantec’.”
    The petition was filed November 4,
    1970 and the Agency’s
    r
    Gion to dismiss on January 12.
    There is
    I
    —
    178
    no time for a new petition
    within
    the
    allotted time, much less
    for a hearing or for the Agency investigation required by the
    statute
    to give us an adequate record.
    Consequently the petition
    is dismissed without prejudice to the filing of a new petition
    complying with the reauirernents
    of Rule ~4Ol.
    ORDER
    After
    consideration
    of
    the
    pleadings
    •
    the
    Board
    hereby
    orders
    that
    the
    petition
    for
    variance
    be
    dismissed.
    I,
    Regina
    E.
    Ryan,
    Clerk
    of
    the
    ?oilut±on
    Control
    Board,
    hereby
    certify
    that
    the
    Board
    adooted
    the
    above
    opinion
    and
    order
    this
    27th
    day
    of
    January,
    1971.
    I
    Di~sent~
    U
    —
    179

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