ILLINOIS POLLUTION CONTROL BOARD
    October 24,
    199.
    OLIN CORPORATION,
    )
    a Virginia Corporation,
    )
    Petitioner,
    PCB 91—2
    V.
    )
    (Variance)
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    )
    Respondent.
    OPINION
    AND
    ORDER OF THE BOARD
    (by J.C. Marlin):
    On January
    3,
    1991 Petitioner Olin Corporation (“Olin”)
    filed its Petition fo~Variance from 35 Ill.Adni. Code 237.102 as
    related to the prohibition of open burning.
    The variance request
    is to accommodate the open burning of four buildings and
    miscellaneous equipment contaminated with explosives.
    The length
    of the variance request is not contained
    in the petition.
    The Illinois Environmental Protection Agency
    (“Agency”)
    filed its Variance Recommendation on April
    5,
    1991.
    The Agency
    initially recommended that variance be denied.
    On April
    15,
    1991, Olin filed an Amended Petition
    (“Aiu.Pet.”).
    The matter was
    set for hearing for July 23,
    1991 but cancelled upon the request
    of the parties.
    Thereafter, the Agency filed its Amended
    Variance Recommendation
    (“Am.Rec.”)
    on September 20,
    1991 which
    recommended that the variance be granted subject to conditions.
    The Petitioner filed its response on October 11,
    1991 accepting
    the Agency’s Recommendation.
    Petitioner’s hearing request was
    withdrawn in their response.
    Based on the record before it, the Board finds that Olin has
    presented adequate proof that immediate compliance with the Board
    regulations at issue would impose an arbitrary or unreasonable
    hardship.
    Accordingly, the variance will be granted, subject to
    conditions consistent with this Opinion and as set forth in the
    attached Order.
    BACKGROUND
    Petitioner operates industrial facilities leased from the
    U.S. Department of Interior, Crab Orchard National Wildlife
    Refuge, Fish and Wildlife Service,
    located in the former U.S.
    Army Ordinance Plant near the city of Marion, rural Williamson
    County,
    Illinois.
    Various propellants, pyrotechnics, pyrotechnic
    devices,
    small to large caliber ammunition, and gas generator
    solid propellant propulsion devices are developed and
    manufactured at this location for the U.S. Department of Defense
    and for export to foreign governments.
    In addition, automobile
    self deployed air bag inflation systems are under development for
    commercial business opportunities.
    126—59 7
    2
    As an adjunct to the development and manufacturing
    operations described above, Petitioner also owns and operates a
    test range and waste thermal treatment facility located on
    approximately 290 acres of strip mine spoil lands near the city
    of Marion in rural Williamson County, Illinois.
    This facility
    provides the capability to ballistically test the various
    munitions and gas generator products and to treat explosive
    wastes generated from the various operations.
    Petitioner
    proposes to open burn four
    (4) buildings and miscellaneous
    equipment contaminated with explosives.
    Petitioner normally
    treats e~cplosivewaste at its waste thermal treatment facility
    identifled in “Exhibit A” of its Petition.
    The items included in
    the request, Olin states, cannot be safely dismantled for
    treatment at the waste thermal treatment facility.
    Petitioner
    therefore, proposes to treat these items by open burning to
    render them safe for proper disposal
    (Pet.,
    p.
    3).
    The proposed
    open burning would be conducted within the development and
    manufacturing facility, designated by Olin as the “D” area.
    REGULATORY FRAMEWORK
    Olin seeks variance from the general prohibition on open
    burning set forth at 35 Ill.Adm. Code 237.102.
    That section
    reads,
    in pertinent part:
    a)
    No person shall cause or allow open
    burning,
    except as provided by this Part.
    In consideration of any variance, the Board determines
    whether a petitioner has presented adequate proof that immediate
    compliance with the Board regulations at issue would impose an
    arbitrary or unreasonable hardship (Ill.Rev.Stat.
    1989,
    ch.
    111
    1/2, par.
    1035
    (a)).
    Furthermore, the burden is upon the
    petitioner to show that its claimed hardship outweighs the public
    interest in attaining compliance with regulations designed to
    protect the public
    (Willowbrook Motel v. Pollution Control Board
    (1977),
    135 Ill.App.3d,
    481 N.E.2d 1032).
    Only with such showing
    can the claimed hardship rise to the level of arbitrary or
    unreasonable hardship.
    Lastly,
    a variance by its nature is temporary reprieve from
    compliance with the Board’s regulations (Monsanto Co.
    V.
    IPCB
    (1977),
    67 I1l.2d 276,
    367 N.E.2d 684), and compliance is to be
    sought regardless of the hardship that the task of eventual
    compliance presents an individual polluter
    (u.).
    Accordingly,
    except in certain special circumstances, a variance petitioner is
    required,
    as a condition to grant of variance, to commit to a
    plan that is reasonably calculated to achieve compliance within
    the term of the variance.
    COMPLIANCE
    PLAN
    126—598
    3
    Olin’s proposed compliance plan is a one—time burn of
    contaminated buildings.
    Olin states:
    To the best of the Petitioner’s knowledge there
    is no
    other suitable method available to safely destroy these
    buildings or prepare the building debris and this
    equipment for acceptable disposal except ~y open
    burning.
    Olin has outlined the various steps it will take to minimize the
    environmental effects.
    The Agency states that the Petitioner
    will conduct the open burn in accordance with RCRA standards and
    upon obtaining a waiver of compliance from USEPA from National
    Emission Standards for Hazardous Air Pollutants (NESHAP)
    requirements.
    (Am.Rec.
    par. 20)
    ENVIRONMENTAL EFFECTS
    Olin has calculated the air quality effects at the location
    of the nearest residence to the proposed open burning site and
    attached that data (“Exhibit E”).
    Olin states that:
    Examination of the data indicates that emissions from
    the proposed open burning will not cause particulate or
    carbon monoxide concentrations to exceed USEPA
    Standards of distances from the proposed open burning
    site equivalent to those of the nearest residences,
    and
    will not under any circumstances result in air quality
    which will be inconsistent with the Clean Air Act and
    the Federal regulations adopted pursuant thereto.
    Furthermore, Petitioner believes that, based on this
    data and the annual emissions data (Exhibit C), there
    would be no impact on the environment or human health
    as a result of the open burning.
    In its original recommendation, the Agency contested Olin’s
    assessment of the environmental impact.
    The Agency contended
    that Olin has failed to address the fact that the proposed burn
    could adversely effect air quality in the area as asbestos fibers
    could be emitted into the air during the proposed burn and
    subsequent clean—up activities.
    (Rec. par.
    5).
    The Agency’s amended recommendation requires Olin to comply
    with both RCRA and NESHAP requirements, or to obtain a waiver
    from NESHAP requirements from USEPA.
    PUBLIC INTEREST
    Olin has described the steps it will take to protect the
    public interest as follows:
    Petitioner will take sufficient measures during the
    proposed open burning to minimize effects on human,
    plant, and animal life in the area.
    Burning will be
    conducted on one
    (1) day during daylight hours only and
    126—599
    4
    will not be conducted during adverse weather
    conditions.
    Sufficient non—contaminated combustible
    materials (wooden pallets) will be spread inside the
    buildings as appropriate to insure ~rapidspread of
    fire,
    intense heat,
    and completion ~f combustion.
    A
    limited amount of ~2 fuel oil will be used to start the
    fire.
    Fire protection will be provided as necessary to
    prevent spread of fire from the proposed sites.
    Petitioner’s operating procedures and plant safety
    rules will authorize a minimum number of personnel to
    be involved in the proposed open burning operation.
    It
    will include the necessary safety measures for the
    proposed open burning and will address sufficient
    measures to control any undesired spread of fire.
    (Pet.,
    p.
    9)
    Debris remaining after open burning (except for concrete
    floors and concrete dividing walls) will be collected and
    disposed of in a permitted landfill.
    Some of the scrap metal
    debris may be distributed to recyclers.
    Asbestos containing
    materials will be collected and disposed in accordance with all
    applicable regulations.
    (u.)
    HARDSHIP
    Since continued storage of this equipment and continued
    presence of these buildings serves no useful purpose, but serve
    to perpetuate hazards, and since no alternate safe disposal
    method is known by Petitioner,
    Petitioner submits that denial of
    this petition would impose an unreasonable hardship on
    Petitioner.
    (Pet.,
    p.
    10)
    The Agency does not contest Olin’s contentions.
    CONCLUSION
    The Board finds that Olin must dispose of four buildings
    contaminated by explosive waste as their continued presence is a
    safety hazard.
    The Board also finds that Olin cannot safely
    dismantle these buildings which Olin proposes to open burn.
    The
    Board notes that a traditional compliance plan does not normally
    involve a one—time event such as Olin proposes.
    However, Olin
    has submitted a compliance plan which minimizes the environmental
    effects from the proposed open burning.
    The Agency has reviewed
    the compliance plan and has recommended to the Board that the
    Board grant the variance subject to conditions.
    Based upon the foregoing, the Board finds that denial of
    variance to Olin Corporation would impose an arbitrary or
    unreasonable hardship upon the Petitioner.
    Therefore, variance
    is granted by the Board today, subject to conditions.
    Olin is
    authorized to conduct one day of open burning in a time,
    place
    and manner which minimizes the emission of air contaminants.
    The
    open burn is to be conducted in accordance with NESHAP or upon
    obtaining a waiver of compliance from these standards from USEPA.
    126—600
    5
    ORDER
    Olin Corporation is hereby granted variance from 35 I11.Adm.
    Code 237.102
    for a period not to exceed one day between October
    23,
    1991 and November
    1,
    1992,
    subject to the following
    conditions:
    1.
    Olin shall comply with NESHAP requirements or
    obtain a waiver from the USEPA from NESHAP requirements
    prior to the proposed burn.
    2.
    Olin shall open burn only during daylight hours,
    shall limit it to those buildings and equipment
    referenced in Petitioner’s variance petition (PCB 91—
    2),
    and shall open burn only on a clear calm day on
    which
    the
    wind
    velocity
    is
    more
    than
    two
    miles
    per
    hour
    but less than ten miles per hour.
    Burning shall not
    take place when the wind is blowing from the north,
    northeast or northwest.
    3.
    Olin shall limit the amount of #2 fuel oil burned
    to 10 gallons.
    4.
    Olin shall comply with all applicable RCRA
    requirements.
    5.
    Olin shall supervise the open burn and shall train
    its employees in the proper procedures to be followed.
    In addition, training manuals delineating the proper
    procedures shall be readily available to Olin’s
    employees and to Agency inspectors.
    6.
    Olin shall notify the surrounding community,
    including the local fire department and county forestry
    service,
    of the exact date and time of the burn and
    shall include a telephone number for nearby residents
    to call in the event of any complaints.
    Copies of such
    notifications shall be sent to the Agency.
    7.
    Olin shall submit to the Agency documenting all
    activities associated with the burn and cleanup within
    30 days.
    126—601
    6
    Within forty-five days of the date of this Order, Petitioner
    shall
    execute
    and
    forward
    to
    :
    Julie
    K.
    Armitage
    Division
    of
    Legal
    Counsel
    Illinois Environmental Protection Agency
    P.O. Box 19276
    2200 Churchill Road
    Springfield, Illinois
    62794—9276
    a Certificate of Acceptance and agreement to be bound to all
    terms and conditions of the granted variance.
    The 45—day period
    shall be held in abeyance during any period that this matter is
    appealed.
    Failure to execute and forward the Certificate within
    45—days renders this variance void and of no force and effect as
    a shield against the enforcement of rules from which this
    variance is granted.
    The form of Certificate is as follows.
    I,(We),
    ,
    hereby
    accept and agree to be bound by all terms and conditions of the
    Order of the Pollution Control Board in PCB 91-2, October 24,
    1991.
    Petitioner
    Authorized
    Agent
    Title
    Date
    Section 41 of the Environmental Protection Act,
    Ill.Rev.Stat.
    1989,
    ch.
    111 1/2 par.
    1041, provides for appeal of
    final Orders of the Board within. 35 days.
    The Rules of the
    Supreme Court of Illinois establish filing requirements.
    IT
    IS
    SO
    ORDERED.
    126—602
    7
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby certi,fy that the above,4~p
    n and Order was
    adopted on the ~
    day of __________________________________
    1991 by a vote of
    ~
    ~
    ~.
    Dorothy N. ~
    Clerk
    /
    Illinois Pc~4utionControl Board
    126—603

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