ILLINOIS POLLUTION CONTROL BOARD
January
8,
1981
INTERNATIONAL
MINERALS
&
CHEMICAL
CORPORATION,
Petitioner,
v.
)
PCB 80—133
ILLINOIS ENVIRONNENTAL PROTECTION
AGENCY,
Respondent.
PATRICK
0.
BOYLE,
ATTORNEY
AT
LAW,
APPEARED
ON
BEHALF
OF
THE
PETITIONER.
WAYNE
WIENERSLAGE,
ATTORNEY
AT
LAW,
APPEARED
ON
BEHALF
OF
THE
RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by
D.
Satchell):
This
matter
comes
before the Board on
a petition for variance
filed
July
21,
1980
by
International Minerals and Chemical Corpora-
tion (IMC),
a New York corporation authorized to do business in
Illinois.
The petition requests, pursuant to Rule
505,
a variance
from Rule 502(a)
of Chapter
2:
Air Pollution.
These rules pro-
hibit open burning of wastes creating a hazard of explosion except
pursuant to
a variance.
On July 28,
1980 the Illinois Environment-
al Protection Agency
(Agency) objected to the variance and request-
ed a hearing and on August 22, 1980 recommended that the variance
be denied.
On November 24,
1980 a hearing was held in Jonesboro.
Nemubers
of the public did not attend and the Board has received no
public
comment
(R.
1).
The Trojan Division of INC’s chemical group operates
a plant
in Wolf Lake, Union County.
The facility is situated to the east
of Illinois Route
3, approximately one and one-half miles north
of the community of Wolf Lake.
The facility is located within
the Shawnee National Forest, approximately three-fourths of a mile
west of the Pine Hills Camp Ground and one mile south of the LaRue-
Pine Hills Ecological Area
(Pet.
Ex.
7).
It
is largely situated
within the E
½,
Sec. 33,
T.
11 S.9
R.
3 W.,
3 PM, Union County.
At the Wolf Lake facility INC manufactures nitrostarch dyna-
mite.
In addition INC fabricates explosives and primers from the
nitrostarch dynamite and from other explosive agents brought to
the facility.
Explosives received in packages include the follow-
ing:
pentolite, TNT, composition B and HBX
(Pet.
III).
These
40—247
—2—
explosives consist of various combinations of the following:
tn-
nitrotoluene
(TNT), pentaerythnitol
tetranitrate
(PETN), cyclonite
(RDX),
aluminum, wax and calcium chloride.
A wax—like residue and
small amounts of explosives remain on the inside of the packaging
materials after the explosives are removed
(Pet.
3).
Approximately
65
of the contaminated paper and wood is from primer
packag-
ing materials.
These packaging materials are not reusable and
must be destroyed
(Pet.
3-A).
INC manufactures primers by melting mixtures of explosives
and casting the mixture
(Pet,
II).
Defective primers are melted
and reused.
However, occasionally defective primers are disposed
of with other explosive refuse.
IMC manufactures shell casings
at the Wolf Lake plant, using
approximately 70
Kraft paper,
15
recycled chip paper,
15
poly-
laminated paper and small quantities of glue.
INC packs explosives
into these shell casings at the Wolf Lake plant.
Explosives
are
emptied out of rejects for reuse
(R.
13).
About
35
of the explo-
sive waste is reject shell casings.
These are contaminated with
explosives.
In addition,
large amounts of powder can accidentally
remain in some she11s~ Reject shells may be contaminated with
the following materials:
ammonium
nitrate,
sodium
nitrate,
nitro—
starch,
zinc oxide, aluminum, sodium thiosuifate, wheat flour,
carbon black, ground coal, oil and guar gum
(Pet.
III;
Pet. Ex.
1).
INC employs about
sixty
persons
at
Wolf
Lake.
An additional
forty or fifty persons are employed in sales or at field magazines
which are directly or indirectly affected by the Wolf Lake operation
The Wolf Lake facility produces primers at
a maximum rate of about
135,000 kg per month and nitrostarch dynamite and blasting agents
at a rate of about 900,000 kg per month
(Pet.
3; Pet. Ex.
1).
Each week INC generates approximately 2500 kg of explosive
contaminated packaging,
reject primers and reject shells
(Pet.
4).
IMC requests a variance to burn this along with an estimated 110,000
kg of existing similarly contaminated material.
INC proposes to
burn a weekly total of about
3600 kg
(8000 lbs.)
(Pet.
5).
Trojan-U.S. Powder Company was previously granted a variance
for open burning on the site
(PCB 74-32,
13 PCB 105, July 18, 1974).
This was
a six month variance conditioned on the posting of a per-
formance bond and completion of a detailed plan to bring the site
into compliance.
Trojan never posted the performance bond and ad-
vised the Agency that it no longer required a variance for open
burning
(Rec.
3).
IMC has explained at that time open burning
ceased and landfilling began
(R.
8; Pet. Ex.
1).
In 1975 and 1976
the explosive waste consisted of nitrostarch contaminated paper
cartons and paper.
Nitrostarch decomposes over a period of time and
can be landfilled.
The TNT and other wastes that are now involved
40—248
do
not
similarly decompose
(R, 12).
The Agency has
indicated
that
it
would
not issue INC permits to landfill its present material
(Pet.
Ex.
VI),
In
1975 the Agency
informed INC
that
it
would require permits
for its landfill operations.
INC discontinued its landfill opera-
tion
(R.
10),
Since that
time
INC has apparently stockpiled its
waste.
The accumulated waste is less than the time interval times
its rate of waste production for two reasons.
Its rate of waste
production
has
varied over the years because
of
differences of
rate
and
type of production.
There have been several fires in the
waste piles which have reduced its volume
(R.
14),
INC proposes to conduct open burning of the explosive contam-
inated waste on the Wolf Lake site in
a fenced, remote northern
area.
Both the stockpile and the proposed burning site are situ-
ated within the NE
¼
of NE
¼
of Sec.
33,
T.
11 S.,
R.
3 W.
INC
will
have
a
fire truck and two
trained
personnel available during
all
operations.
An adequate firebreak will be constructed between
the
forest
and
the open burning area
(Pet,
6; Pet,
Ex.
6).
The burning area will be scraped clear of the vegetation and
covered
with
cinders
from burned coal.
An earthen berm will be
constructed around the
burning
site to insure that there is no
rainwater runoff contamination of Wolf Lake.
Runoff will be col-
lected to a single place within the berm
(Pet,
Ex,
6).
Wolf Lake
is the only known
habitat in Illinois for certain
endangered
species
(IEPA v.
Missouri Pacific
R.
R.
Co. and_INC,
PCB 80-87).
The proposed
burning site is located
at an
elevation of 350
feet near the base
of a steep slope.
It is
approximately 700 feet
from the crest of a ridge
with elevations varying from
600 to 700
feet above sea
level.
INC has stated that it has the
capacity to
stop any fire before
it reaches this slope
(Pet,
8)
The nearest
residence is located
approximately two-thirds of
a mile southwest of the proposed burning
site
(Pet,
7).
Union
County is designated
by the U.
S. Environmental Protection
Agency
(USEPA)
as:
“cannot be classified
or better than national
stan-
dards”
for carbon monoxide, hydrocarbons and nitrogen oxides, i.e.,
as an attainment
area for these pollutants.
Union
County is desig-
nated as better than national standards
for suspended
particulates
(TSP)
(Rec,
7).
The nearest air quality reporting station is
located
at Carbondale, twenty miles northeast of the facility.
Emissions from burning explosive waste are expected to be
similar to those from open burning of municipal refuse,
since the
explosives represent a negligible portion of the mass.
The Agency
anticipates the following figures
for annual
emissions:
40—249
Carbon monoxide
8.8 tons
Hydrocarbons
3.1 tons
Nitrogen oxides
0,6 tons
Particulates
1,7 tons
The above data
are taken from the recommendation
(Rec.
8;
Ex.
9).
The emission figures
are comparable
to those
given by INC
(Pet.
7;
Pet.
Ex.
3,
5),
Since the facility and burning
site do not have a potential
to emit more than 100 tons per year, it is not subject to review
for the prevention of significant deterioration of air quality in
an attainment area.
Since the facility and the proposed burning
site are not major sources
the
Agency has not determined whether
or not the petitioner has adopted the best available control tech-
nology for its proposed
open burning site
(Rec,
8).
IMC uses a background TSP level of
96
ug/rn3
(micrograms per
cubic meter), based on monitoring data from Cape Girardeau, Missouri.
The Agency believes
this background
concentration is not represent-
ative of the area,
The second highest twenty—four hour TSP concen-
tration measured in Mount Vernon,
Illinois in
1979 is 113 ug/m3.
The Agency believes this is
a better estimate,
The maximum computed twenty—four hour TSP concentration from
the proposed source
is
25 ug/m3,
Whether this is
added to a
background of
96
or 113 ug/m3,
the result is less
than the second-
ary twenty-four hour
national ambient air
quality standard
(NAAQS)
of 150 ug/m3.
The Agency concluded that the granting
of the vari-
ance should not
cause a violation of NAAQS in the area
(Rec,
8).
The Agency believes that
the petitioner~s air quality
analysis,
along with the Agency~s
analysis, should satisfy the
requirement
that the state
implementation plan revision will not prevent the
attainment or maintenance of
NAAQS
(Rec,
9),
Previous
Agency inspections have noted materials
in the
stockpile
which did not appear to be explosive contaminated
waste
(PCB
79-176,
37 PCB 319,
321),
Explosive wastes are
now being
separated from
uncontaminated waste,
INC has no
alternative but to burn its accumulated waste.
In
the short
run there
is no alternative but to burn its current
waste.
For
long
term
compliance two suggestions have been
made.
The
first
is
a
wet maceration system
which would wash the
materials
from the
waste with
water.
This has been rejected because
of difficulties
with the
disposal
of the resulting water.
Another
long term com-
pliance plan would involve construction
of an incinerator.
Incin-
erators
are
now
operating
owned by Olin Corporation at Marion,
Illinois
and
by
United States military at various locations
(R.
21).
40—250
—5—
Petitioner
contends
that
incineration
is
not
practicable
in
its
case because of the possibility of a large charge accidentally
going into the incinerator with the explosive contaminated waste.
Hand picking of waste has been suggested as
a method of avoiding
this
(R.
7;
Pet. Ex.
1).
INC has not prepared a detailed compliance plan at this time.
It requests only an eighteen month variance and is willing to come
forth with
a detailed plan at the conclusion of the variance
(Pet.
Ex.
1, 2).
For the reasons stated above the Board finds that INC would
suffer arbitrary on unreasonable hardship if not allowed to open
burn its wastes.
The variance will be granted with the conditions
noted above together with conditions which appear in the Order.
INC and its predecessor were aware of the requirement of a var-
iance for open burning of e~plosivewaste in 1971.
In 1974 a vari-
ance was actually obtained and rejected,
INC was on actual notice
of the requirement to obtain a variance prior to conducting open
burning,
INC has argued that continuation of its manufacturing op-
eration necessitated open burning.
IMC accumulated a stockpile of
waste knowing that there was no lawful method of disposing of its
except through application to the Board for a variance,
The Board
rejects IMC~sclaims of hardship which result from the dangers at-
tendant in the size of the pile and its deteriorating condition.
This hardship is self-imposed.
Section 36(a)
of the Act in this case requires
a performance
bond
in
an
amount
which
shall
not
exceed
the
reasonable
cost
of
work to be completed pursuant to this variance.
Since the Board is
not at this time requiring actual construction of control equipment,
the
amount
of the bond will be based on the cost of providing the
berm and other safeguards required during open burning.
It is
reasonable to expect these to cost
in excess of $10,000.
IMC will
be required to execute a standard form bond acceptable to the
Agency.
No surety or security will be required.
On December 29,
1980 the Agency filed an amendment recommending
grant of the variance with conditions.
This was not within the time
requirements of Procedural Rule 405(a)
and was not accompanied by a
motion for leave to file.
Since it was filed near the due date,
the
Board has had little time to consider the pleading.
The Agency now recommends that the variance be granted for three
years, conditioned upon full compliance before December 31,
1983,
through either construction of control facilities or a rule change.
The Agency cites federal regulations
as requiring any compliance
schedule or revision extending over a period of more than one year
40—25 1
—6—
from the date of adoption to
provide
for
legally
enforceable
in-
crements of progress toward compliance
40
CFR Section 51.1(q) (5)J,
The Agency claims this prohibits the variance granted which requires
only submission of a plan.
The Board has not in this case ruled that INC must at some time
discontinue open burning.
The possibility exists that upon expira-
tion of this variance, INC may persuade the Board that there is
still no available technology,
Rule 505 may allow an indefinite
succession of variances where progress toward compliance consists
only of research and operational improvements.
Board rules do not
specifically require control technology.
The Agency has not in-
formed the Board of any United States Environmental Protection Agency
regulations, or any SIP provisions, which require control technology.
The Agency has indicated that there will be no violations of air
quality standards or emission limitations.
There is no indication
that the open burning will cause any SIP problems at
all,
From the
facts before the Board it appears that the limitation of
40 CFR
Section 51.1(q) (5)
is inapplicable.
Several accidental fires have occurred in rMC~swaste stockpile
(Pet,
4).
These may have involved violations of the Act and Board
rules, including Section
9 and Rule 502 of Chapter 2.
In addition,
the stockpiling may have been a violation of Section
21(a)
of the
Act and Rules 201 and 202 of Chapter
7:
Solid Waste.
The variance
granted will not be construed as excusing any violations which may
have occurred in the past.
This Opinion constitutes the Board~s findings of fact and con-
clusions of law in this matter.
ORDER
Petitioner International Minerals and Chemical Corporation
(IMC)
is granted pursuant to Rule 505
a variance from Rule 502(a)
of
Chapter
2:
Air
Pollution,
subject
to
the
following
conditions:
1.
This variance
will expire June
30,
1982,
2.
This variance authorizes Petitioner to burn no more than
3600 kg
(8000
lbs.)
of explosive contaminated waste each
week,
3.
This variance shall cover only explosive contaminated waste
generated by Petitioner~sWolf Lake facility.
4.
Petitioner shall segregate explosive and explosive contam-
inated waste from other waste.
40—252
—7—
5.
Petitioner shall construct and maintain an adequate
fire-
break around its burning area.
6.
Petitioner shall have adequate firefighting equipment on
hand during open burning.
7.
Petitioner shall construct an earthen berm around its burn-
ing area,
Petitioner shall not cause or allow rainwater
runoff from the burning area, or runoff from firefighting
within the berm area,
to enter Wolf
Lake,
8.
Burning shall be conducted under the direction of person-
nel trained in explosive burning procedures and shall be
carried out between the hours of
8 a.m.
and
3 p.m.
on no
more than two days per week and for no more than three
hours per day.
9.
Petitioner shall notify the Illinois Environmental Protection
Agency
(Agency)
and the United States Forest Service before
conducting open burning.
Petitioner shall either notify
them in advance each day burning takes place, or provide
them with a schedule and notify them in advance of deviations
from the schedule,
Petitioner may elect between the alter-
natives,
10.
Petitioner shall not conduct burning during episodes de-
clared pursuant to Part IV of Chapter 2:
Air Pollution.
11.
Petitioner shall not conduct burning when atmospheric con-
ditions are not conducive to adequate dispersion or when
air quality standards may be violated.
12.
Petitioner shall not conduct burning when it
is
excessively
dry or windy so as to present a danger of fire spreading.
13.
If
ambient
air quality or weather conditions
are not favor-
able to burning, the Agency shall have the right to instruct
Petitioner to postpone burning.
14.
Petitioner shall
file quarterly reports with the Illinois
Environmental Protection Agency listing the amount of
material burned on each specific day that burning took
place during the quarterly period.
15.
On or before January
1, 1982 INC shall forward to the
Agency a report
on the then current technology of explosive
contaminated waste disposal.
The report shall include a
literature search and the results of on—site visits to
facilities disposing of explosiye contaminated waste by
other than open burning or landfilling.
The report shall
40—253
—8—
estimate costs involved if INC were to discontinue open
burning upon expiration of this variance.
16.
Within ninety days of the date of this Order Petitioner
shall execute and forward to the Agency a performance
bond, without surety, in the amount of $10,000, condi-
tioned upon performance by Petitioner of conditions
numbered
5,
6
and
7
of
this
Order.
17.
Within forty—five days of the date of this Order, Peti-
tioner shall execute and forward to the Illinois Environ-
mental Protection Agency, Variance Section, 2200 Chur-
chill Road, Springfield, Illinois 62706,
a Certificate
of Acceptance and Agreement to be bound to all terms and
conditions of this variance.
This forty-five day period
shall be held in abeyance for any period this matter is
being appealed.
The form of the Certificate shall be
as
follows:
CERTIFICATION
I,
(We)
,
___________________________,
having read
and fully understanding the Order in PCB 80-133, hereby
accept that Order and agree to be bound by all of its
terms and conditions,
SIGNED _____________________________
TITLE
______________________________
DATE
_____________________________
IT
IS
SO
ORDERED.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control
Board, hereby certify that the above Opinion and Order were adopted
on the
~ ~
day of
~
1981 by a vote of
L-~-’~L--
L
~
Christan L. Noffett,. Clerk
Illinois Pollution Control Board
40—254