ILLINOIS
    POLLUTION CONTROL BOARD
    July
    8,
    1971
    F,D. DECKER d/b/a/
    DECKER SAWMILL
    v.
    )
    PCB
    71-73
    ENVIRONMENTAL
    PROTECTION
    AGENCY
    Douglas
    Marti, Attorney for Decker Sawmill.
    Lee Kane Zell~,Attorney
    for Environmental Protection Agency.
    Opinion of the Board
    (by Mr. Kissel):
    Decker Sawmill
    (Decker)
    filed
    a petition for variance
    with the Environmental Protection Agency
    (Agency)
    and
    the
    Board on April
    12,
    1971 in which it requested that it be
    given until March
    1,
    1972 to purchase equipment
    for chipping
    wood slabs,
    and until that time
    it sought permission to burn
    the wood slabs in the open.
    The Agency filed its recornmenda-
    tion on May
    10, 1971 asking that the petition for variance
    be denied.
    A hearing on this matter was held on May
    11,
    1971
    in Greenville,
    Illinois
    on the petition before Carl Kasten,
    hearing officer.
    Decker operates
    a sawmill
    at
    a location about one quar-
    ter of a mile northwest of Greenville,
    Illinois at the inter-
    section of Routes 140 and 127,
    and adjacent to the east fork
    of Shoal Creek.
    The plant has been located at that site for
    the last 18 months,
    In the operation of his business,
    Decker
    receives various kinds
    of wood,
    from good hard woods such as
    white oak and walnut, to
    low grade
    lumber, which he cuts into
    boards
    for sale.
    As
    a result of
    this operation, Decker pro-
    duces basically two kinds of waste product
    sawdust and wood
    slabs,
    The sawdust is readily useable by local dairy farmers
    for bedding in the stalls of the dairy cattle.
    The wood slabs,
    however,
    are not as easily useable by third parties in their
    present
    form,
    Decker
    has been burning six to eight tons of
    these
    slabs each day in the open since he has been on the pres-
    ent site.
    2 —93

    There are really three alternatives
    (other than open
    burning)
    for disposing of the wood slabs:
    1) salvaging by
    chipping the wood;
    2) burning in incinerators; and
    3) land-
    fill,
    Each of these alternatives was adequately explored in
    the
    record.
    In the salvaging operation, Decker would debark
    and
    chip
    the
    waste wood and then sell the chips and bark.
    The cost of the chipper and debarker is
    estimated
    to be ap-
    proximately $70,000
    (see Pet,
    Ex.
    3).
    But
    Dekker will
    realize some income
    from the sale of the
    chips and
    the bark.
    (Chips
    sell
    for
    $14.60
    per
    oven-dried
    ton).
    Decker
    says
    that he cannot install the chipper and debarker in his pres-
    ent site due
    to lack of space and due to an installation cost
    of $10,000
    (included in the above cost) which would have to
    be paid again in 1972 when Decker moves to a new site
    (which
    is nearby and about twice the size of the present site).
    The chipper and debarker would also benefit Decker because
    he would realize
    a
    savincrs in saw blades and the operation
    would be speedier.
    The second alternative, incinerators,
    would
    cost
    about
    $92,000
    and
    would
    result
    in no side bene-
    fits
    to Decker.
    The cost
    (see Pet,
    Ex,
    4) would cover the
    purchase
    and installation of an incinerator which would
    burn
    about
    3000
    pounds
    per
    hour,
    A
    smaller
    incinerator
    would indeed cost less, but would have to be operated around
    the
    clock,
    and
    therefore,
    additional
    personnel
    would
    have
    to be hired to operate the incinerator.
    This would make
    the cost of
    a smaller incinerator roughly the same
    as
    a
    large one.
    The third alternative, landfill, would be
    the
    costliest.
    One witness testified that the cost of disposing
    of
    16
    to 18 tons of wood slabs per day would be $124,500 per
    year,
    Decker, however, only generated about
    6 to
    8 tons
    of
    wood slabs per day, but the testimony still has validity
    because the only difference would seem to be
    the size of the
    hauling equipment,
    and the amount of land needed.
    This
    method of disposal would not result in any return to Decker,
    Before discussing the petition for variance,
    it is
    necessary
    to deal with
    a constitutional question raise,d by
    Decker~s attorney.
    Essentially, Decker~sattorney demanded
    a trial by jury,
    and stated that his client~sright to due
    process would be violated if the variance were denied.
    The
    Board has dealt with
    all of these issues previously in the
    Granite City Steel case, EPA
    v. Granite CitJ Steel, PCB
    70-34,
    We held there,
    and reaffirm here,
    that the procedural safe-
    guards provided all petitioners and respondents in the Environ-
    mental Protection Act and
    the Rules and Regulations of the
    2—94

    Board meet every constitutional requirement.
    The petitioner
    in this case had more than an adequate opportunity to be heard.
    He was
    in no way limited to the quantity of evidence he wished
    to produce.
    He was treated fairly and equitably as the statute
    and the constitution require.
    We therefore hold that the peti-
    tioner~srights were not violated and that it was not error to
    provide for the hearing of this case before
    a hearing officer
    and not
    a full
    jury.
    We now turn to the substantive
    issues of this
    case,
    The
    Environmental Protection Act requires that any person seeking
    a variance must prove that compliance with the law would
    ira—
    pose an “arbitrary or unreasonable hardship”.
    We have con-
    sistently held that in determining what an “arbitrary or un—
    reasonable hardship”
    is we will employ
    a balancing process,
    balancing the benefits and detriments
    to the community at
    large against the benefits and detriments
    to the person seek-
    ing the variance,
    We have also
    said that this is not an
    equal balance, but Tather
    the benefits to the person seeking
    the variance must substantially outweigh the detriments
    to
    the community at large.
    In the instant case, we have on the
    one hand the financial hardship which would be imposed on
    Decker,
    the industries and the farmers in the surrounding area
    to be weighed against the harm to be suffered by
    the public as
    a result of the emission of contaminants into the air from the
    open burning of wood slabs.
    In this
    case,
    it seems
    that
    if
    the Board were to deny the variance, Decker would have
    two basic
    alternatives:
    first,
    he could close his business,
    or second,
    he could install some kind of device
    (incinerator,
    or chipper
    and debarker)
    or landfill to avoid any open burning.
    Both
    alternatives
    are expensive either
    to Decker himself or
    to the
    community.
    If he were to close his business,
    farmers would
    not have needed sawdust for the dairy farms,
    the low grade
    logs would be left in the woods
    to rot because there would be
    no mill close by
    to accept these,
    the better wood would be
    more expensive to haul because the nearest mill
    is about
    70
    miles farther away than Decker~s mill,
    and finally,
    six men
    would be put out of work,
    This alternative is not called for
    by
    the evidence,
    The open burning that has been done by
    Decker has simply not affected the neighbors,
    and they so
    testified.
    One neighbor lived as close as
    750 feet and he
    was
    not bothered by the burning at all and was not familiar
    with anyone nearby that was bothered by it.
    2—95

    Notwithstanding the
    fact that present neighbors are
    not bothered by the contaminants which come from open burning,
    we
    feel that it should be
    the policy of this Board to halt
    such burning wherever technically and economically feasible.
    Such
    is the case here,
    Decker has any number of alternate
    methods
    of
    disposal
    of
    the
    wood
    slabs
    incineration, chipping
    and hauling,
    or landfill,
    While these methods are certainly
    technically feasible,
    there is
    a real question of Decker’s
    ability to pay for the various alternatives.
    Decker has
    been operating this sawmill on this site for about 18 months,
    and his record of earnings has been less than spectacular,
    although typical
    for newl7-started sawmills,
    In 1969 he
    sustained
    a loss of $10,000 which was
    for only
    six months of
    that year.
    In 1970 he experienced
    a profit of
    $2,900,
    and
    anticipates
    in 1971
    to earn
    a net profit of $15,000.
    His
    indebtedness presently is about
    $40,000, but he hopes to have
    this reduced to $17,000 by March
    1,
    1972,
    His present finan-
    cial condition
    is
    not at the level where he can presently afford
    large expenditures
    of money.
    He did apply
    for a loan with
    two
    banks and was turned down by both
    (see Pet.
    Ex,
    8 and 9),
    One
    bank official
    said that his bank was unable to make the loan
    because “your operations simply will not produce enough revenue
    to repay
    the debt load”
    (Pet.
    Ex,
    9).
    Decker himself seems
    optimistic
    about
    his
    ability
    to
    move
    to
    a
    new
    location
    and
    install
    a
    chipper
    and
    debarker
    there
    by
    March
    1,
    1972,
    The
    question we must decide is whether to require the move earlier
    than that.
    We think
    not,
    Not only will Decker be
    better able
    to pay for the equipment and the move at that time, but the
    move
    now
    would
    cause
    an
    additional
    financial
    loss
    because
    the
    stacked wood would rot.
    We therefore
    feel that the petition
    for variance should be granted, under the conditions outlined
    below,
    allowing the open burning of not more than
    8 tons of
    wood slabs per day during the next few months
    (actually to
    March
    1,
    1972)
    until
    Decker
    can
    move
    and
    operate
    on
    the
    new
    site with the chipper and debarker or with whatever other means
    Decker chooses to employ to secure compliance with the Act and
    the
    Rules
    and
    Regulations
    promulgated
    thereunder.
    Since
    there
    is
    some
    question
    about
    Decker’s
    ability
    to
    afford the cost of the chipper and debarker, within ninety
    (90)
    days
    of this
    order, Decker shall
    file with the Board and the
    Agency an exact timetable
    for the move and
    for the purchase
    and installation
    of the chipper and debarker~or of whatever
    2
    96

    other means Decker intends to use to bring its operation into
    compliance with the Environmental Protection Act and the Rules
    and Regulations promulgated thereunder.
    In this submission,
    Decker shall include
    a report of the negotiations it has had
    with financial institutions in order to obtain finances
    for
    purchase of equipment.
    In addition, Decker shall report to
    the Board and the Agency before December 3l~ 1971 the specific
    monetary
    commitment
    it
    has
    obtained
    to
    finance
    the
    purchase
    of
    the equipment.
    Included in this report will be
    a report on
    the negotiations which Decker has had with financial institu-
    tions
    in order to obtain finances for the purchase of
    the
    equipment.
    In addition, Decker shall report
    to the Board and
    to the Agency before December
    31,
    1971
    the specific financial
    commitment which Decker has received to finance the purchase
    of the equipment.
    As
    a
    condition
    for
    the
    variance,
    Decker
    must,
    within
    seven
    (7)
    days
    after
    the
    date
    of
    this
    order,
    remove
    all
    the
    ashes
    which
    are presently found on his
    site
    and which
    are
    a
    result of previous burning.
    Further, Decker shall remove
    whatever
    further
    ashes
    accumulated,
    within
    a
    very
    short
    time
    after burning occurs.
    This
    opinion
    constitutes
    the
    Board’s
    findings
    of
    fact
    and
    conclusions
    of
    law.
    ORDER
    It is the order of the Board tnat the request of Decker
    Sawmill
    for
    a variance be granted subject to the following
    conditions:
    1)
    Open burning of
    up to eight
    (8)
    tons
    of wood slabs
    per
    day may continue on the present site until March
    1,
    1972.
    Open burning shall not be conducted on the present site after
    the above date
    and shall never be conducted on the new site,
    2)
    Within ninety
    (90)
    days of
    the entry of this order,
    Decker shall file with the Board and the Agency an exact time-
    table
    for the move and
    for the purchase and installation of the
    chipper and debarker or of whatever other means Decker intends
    2 —97

    to
    use
    to
    secure
    compliance
    with
    the
    Act
    and
    with
    the
    Rules
    and
    Regulations
    promulgated
    thereunder.
    In
    this
    submission,
    Decker
    shall
    include
    a
    report
    on
    the
    negotiations
    it
    has
    had
    with
    financial
    institutions
    in order
    to obtain finances
    for
    the purchase of equipment.
    By December
    31,
    1971,
    Decker shall
    report to the Board and the Agency on the specific financial
    commitments
    it has obtained to finance the purchase of equip-
    ment.
    3)
    Within seven
    (7)
    days of the entry of the order,
    Decker
    shall
    remove
    all
    ashes
    presently
    found~:onthe present
    site.
    All further ashes generated by the open burning con-
    ducted until March
    1,
    1972 shah
    be expeditiously removed.
    4)
    Decker shall post with the Environmental Protec-
    tion Agency on or before August
    10,
    1971,
    a personal bond in
    the amount of
    $70,000, which sum shall be forfeited to the
    State of Illinois
    in the event that the conditions of the
    order are violated.
    5)
    During the period
    this variance is in effect,
    Decker Sawmill shall not increase
    the pollutional nature of
    the discharge
    either in strength or volume.
    6)
    The failure of the petitioner to adhere to any
    of the conditions of this order shall be grounds for revoca-
    tion of the variance.
    I,
    Regina
    E.
    Ryan, Clerk of the Pollution Control Board,
    certify that the Board adopted the above opinion and order this
    ~
    day of ~~~L____’
    1971,
    /
    I
    ~—-
    1

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