ILLINOIS
POLLUTION
CONTROL
BOARD
DEERE
&
CO.
/~9
#70—20
ENVIRONMENTAL
PROTECTION
AGENCY
December
22,
1970
Opinion
of
the
Board
(by
Mr.
Currie):
Deere
asks
a
variance
to
permit
open
burning
for
the
purpose
of instructing employees
in
firefighting.
We
grant
the
petitton
subject
to conditions
stated below:
Both
section
9
(c)
of the Environmental Protection Act and
Rule
2—1.2
of
the
Rules
and
Regulations Governing the Control
of
Air
Pollution
(adopted
by
the
old
Air
Pollution
Control
Board
and
preserved
by
section
)49
(c)
of
the Act) outlaw the open burn-
ing of refuse.
Under section
35,
however,
the Board
is authorized
to
grant
variances
permitting
Open
burning
or
other
acts
in
contravention
of
the
statute
or
regulations,
upon
proof
that
“compliance
with
any
rule
or
regulation,
requirement
or
order
of
the
Board
would
impose
an
arbitrary
or
unreasonable
hardship”.
Deere proposes to conduct
a one—day training session
in May,
1971,
during which four
fires will
be
lit:
1)
fifty
to
seventy
gallons
of
gasoline
in
a
four—foot
square
steel pan;
2)
less than
one
cord
of wood on open ground;
3)
one
or two square
yards
of carpet on open ground;
!~)
An electrical
fire
in
a steel cabinet about
the
size of
an office desk filled with two or three bushels of
scrap insulated wire.
The total burning time was initially estimated at four hours.
(R.
6—8).
However,
in a letter
to
the
Board dated December
17
Deere stated
that the burning time for the
wood,
carpet,
and
electrical fires would be
15—20
minutes each during both morning
and afternoon sessions,
for
a total of about
two hours, plus
“a number”
of “very
short” gasoline
fires.
Deere
first
wrote to
the
Environmental Protection Agency
September
1, requesting permission
to conduct the exercise on
November
2.
The Agency returned the petition to Deere because it
did
not contain allegations of hardship as required to conform
with
the statute.
We received the amended petition October
2
and held
a hearing November
23,
On December
9,
after reviewing
the
transcript,
we
directed
to
the
company
a
request
for
additional
~
129
information.
On December 21 we received the reply.
Deere
has
indicated
some
irritation
at
our
holding
a hearing
on
a
matter
such
as
this
(see
R.
12—13).
We
agree
that
we
have
many
more
serious
pollution
problems
to
deal
with.
But,
as
we
clearly stated
in authorizing the hearing,
we have an obligation
to discover the facts;
we cannot grant variances without proof;
and we cannot ignore unnecessary pollution from one source just
because there are other sources that may be worse.
Our holding
a hearing
:Ln no way indicates an intention to disapprove
the
petition but only our insistence that we know
what
we
are
doing
before
we
permit
an
activity
that
will cause the emission
of
contaminants
that
may
be
prohibited
by
the
law.
The necessity for holding
a hearing was heightened in the
present case because this was
our first
case involving burning for
firefighting
purposes.
The
Board must have
some
means
of
learning
about
proposed
practices
and
means
of
minimizing
emissions
if
it
is
to
act
intelligently
on
variance
requests.
In
later
cases
we
may
be
able
to
rely
heavily
on
information
received
in
earlier
hearings
and
thereby
reduce
the
need
for
hearings
in
the
future.
For example, as
a result of our experience in
this
case
we
have
proposea
a
new regulation
(#R70—ll)
that would allow
the
Environ-
mental
Protection
Agency
after
informal
investigation
without
hearing
to
grant
permits
to
conduct
firefighting
exercises
upon
certain
conditions.
But
we
do
not
think
it
unreasonable
to
ask
those
who
seek
permission
to
do
what
the
law
forbids
to
helr
educate
us
as
to
the
need
for
their
doing
so.
At
the
hearing
Deere
suggested
that
because
the
statute
and
regulations
forbid
only
the
burning
of
“refuse”
it
mnay
he
permissible
to burn
“brand
new”
combustible
material
without
a
variance
(R.
28).
While
the
statutory
ban
itself
incorporates
a
definition
of
“refuse”
as
discarded
solid
materIals
~
3
(is))
,
the
regulations
contain
a
definition
of
“trade
waste”
that
includes
“liquid
waste
materials”
and
“li~uid
material
.
.
.
resulting
from
.
.
.
the prosecution
of any business, trade
or
industry”
(Rules
&
Regulations
Govern—
log the Control
ci’ Air Poilution,
o
ri.
1,
Section
1)
Because tbe
combustion
of
‘new”
:iate:’ial
can
cause
as much
pollution
as
the
burning
of
?discarded
material,
we are
Inc
lined
to
follow
the
example
of the United Stases Supreme
Court
in
a
related
context
and construe “refuse”
to
include
material
that
becomes
waste
uron its release into
tm:
environment,
Cf.
United
States
v.
Standard
Gil
Co.
,
383
U. I.
22~4
(1966)
,
where
a conviction
under the Refuse Act
of
1399
was
sustainec
for
the
accidental
discharge
of valuable gasoline into
navigible
waters.
Since
we
have
decided
to grant the present variance,
we need
not
resolve
this question today;
we expect
to
clarify
the issue when we
revise
tne
open—burning
regulations
under
our
general
authority
to
adopt
rules
for
the
prevention
of
air
pollution.
Hearings
on
that
subject, in
#R70—ll,
will
be
held
in
January.
The importance of instructing employees in firefighting techniques
is clear.
Indeed, such instruction not only may reduce
injuries
and
property losses due to fire; it
may
in the long run result in
less air pol3ution, since the destruction of a plant by fire would
emit
far
more pollution than a few
small
and controlled instruction
sessions.
Moreover, we agree with Deere that there is no sub-
stitute, in learnIng how to fight fires, for actually fighting
tires.
Further, Deere tells us its insurability
may
depend upon
adequate firefighting knowledge
among
its employess
CR.
17).
On the other side of the balance, the contaminants that will
be emitted in tne present case are not extreme.
A little wood
smoke is small cause for concern under the circumstances; there
will be some carbon monoxide and smoke
from
the gasoline and especial-
ly from the
burning
of electrical Insulation CR.
2k).
A local
pollution control official, who testified in favor of the variance,
said the particulate matter emitted would be “quite dense” although
he
had
earlier estimated that it would be equivalent to 11 or 2
on the standard Ringelmann chart
CR.
25).
The burning will take
place in an isolated area, on Deere’s property, outside any munici-
pality, over a mile and a half from Moline and half a mile from
any inhabited residences, and close by a fire hydrant
CR.
5-’6).
No one testified or submitted written statements in opposition to
the grant of the variance, and the Environmental Protection Agency
asks us
to grant it
(B.
16).
On the basis of the above facts and considerations we conclude
that denial of the present petition would impose an arbitrary
and unreasonable hardship.
Though we are convinced that a variance must be granted, it
is our responsibility to impose conditions that will ensure that
the
air
pollution resulting from the proposed activity is minimized.
It
is
for
this reason
that
the conditions enumerated in the order
below
are
attached.
One of the questions in
our
December
9
letter to the Company
related to the number of employees to be instructed at these sessions
and to possible coordination with similar activities in the Moline
area.
We were concerned to assure that a separate school was
not conducted every time a single new employee needed instruction
but
that
municipalities
and
industries
coordinate
their
instructional
activities in order to maximize the instructional benefit from
each fire that is set.
The Company has replied that it plans to instruct about 60
persons In this session; that additional sessions
may
be required
yearly; and that “because of the special
nature
of these sessions
and the need for individual participation, it is not feasible to
combine these sessions with those of other industries or municipalities.”
1—131
(December
.17 letter,
P.
2).
We
are
satisfied with those assurances.
It should be noted that no bond
is required
by
our
order;
this
is not the type of case in which the statute contemplates security
to assure the installation of equipment designed
to reduce
a con-
tinuing pollution problem.
This opinion constitutes
the Board’s findings of fact
and
conclUSiOnS of law.
—
132
ORDER
Deere
&
Co.
having
petitioned for
a variance
to permit the
oren burning of matter as specified in
the opinion of this
Board,
the Board
after
examining the hearing transcript hereby orders as
follows:
1.
Deere
& Co.
is authorized to conduct
open
burning
as des-
cribed in the Board’s opinion for firefighting instruction purposes.
2.
The exercise shall
take place upon
a single day
in
May,
1971,
to be selected by Deere
&
Co.
3.
The exercise shall not be conducted upon
any
day
onì which
weather
conditions
are
adverse
for
the
disper
sal
of
air
contaminants.
3.
The Environmenta
Protection Agency
shall be notified
in advance of the day on which the burning
is
to take place
arid
shall be permitted
to observe
‘the exercise.
5.
Burning shall be conducted according
to recognized
practices designed
to maximize
the instructional benefit
of the
exercise while avoiding unnecessary emissions.
Unnecessarily smoky
materials
shall
not
be used, and
the
total
duration of burning
shall
not exceed
four
hours.
6.
Photographs
of the exercise shall be made
and submitted to
the
ilgency and
to the Board,
in addition to
a full report of the
exercise,
n
order
to demonstrate
the effects
of the open burning.
‘7.
The
open burning shall not be
so conducted
as
to cause
air ~oilution
as
defined
in section
3
(b)
of
the
Environmental
Protection Act.
8.
The breach
of any of these conditions shall be ground
for
revocatnon of this variance
and for other
sanctions
as
pro
ntded
by the Act
I
Dissent
I,
Regina
E,
Ryan,
certify
that
the
Board
adonted
the
above
ot,iniori
and
Order
this
il
day
of
Req1ina
E~ Ryan~ /
Clerk
of
the
Rr~-r~
I Concur
C
I
—
133