~L1 NOiS OL,L,U’PTQfl

C(~tJTIWL

BOARD

:•;a~•cti3,

:19? L

VALENCE

)

)

v.

)

a!

70—5Z1

)

ENVIRONMENTAL PROTECTION A~iENCY

)

STRIEGEL’S TREE SERVICE

)

)

V.

)

N

•i’o—a

)

ENVIRONMENTAL

PROTECTION AGENCY

)

Opinion of the Board (by :6r. Currle):

These petitIons request vaflances to permIt the open burnini;

of brush and trees. Because of the simplicity of these cases, we

have proceeded wtthout hearing. The facts appear from the plead-

ings; the petitions are den~.ed.

The applicable law has been spelled out in prior Board decision:

Swords v. EPA,

N

70—6 (Sept.2, 1970); City of Jacksonville v. EPA,

N

70—30 (Jan.27, 1971); City of Winchester v. EPA, U70—37 (Feb. 8,

1971); City of DuQuoin v. EPA, N 70—~10 (decided today). Conclusory

allegations carry no

weight;

the gIst of both these petitions i.~

that it costs more to dispose of woody wastes properly than to

burn them. AvoidIng pollution is a legitImate cost of doing busines:

and the saving of a few sheckels is not srounds (‘or a variance.

See Swords v. EPA, supra, which governs the present cases.

Zn neither case is there any allegatf.on

of an intention to

bring emissions under control in the future; both petitions seek

permission to burn substantial quantities or material indefinitely

and for profit. In the Valence case there is no allegation that

the petitioners are in any more difficult position to comply

wIth the law than is any other person in the waste disposa: business

:hat the Valence petitIon asks in substance is a repeal of the

.pen—burning restricticn, but the variance procedure is not intended

to authorize a repeal of what the statute provides. The legisaturr

cognizant that preventing polution costs money, deliberateli

forbade open burning. We cannot say the legislature was wronc.

Moreover, as in the DuQuoin case, supra, the Valence site is,

according to the Agency, operated in vtolatton or the landl’i.i

regulations so that burning would create a nazard of setting other

reftise on (‘ire. The site is next door to an oil storage ~‘ac1I1ty

1-al

---

which is highly subject to flame. And the Agency has received

letters from some sixty citizens objecting to the grant of the

variance.

The facts in Striegel’s Tree Service are not so shocking,

but we find the allegations in that ease insufficient as well, for

reasons given above and in the opinions cited. Although some of

the trees sought to be burned in that case are diseased, and al-

though we have held in the Winchester case that burning of diseased

trees may be allowable under appropriate circumstances to avoid

contagion, the Agency points out the possibiflty that an alternatIve

burning site ma:: be available in the area, and we agree there should

not be two. oreover, we have today published the proposed final

draft

of a ro~ulation that would grant the Agency authority to

!c:uc pernits ~or burning diseased treeE under appropriate conditIons;

:;Lr’ic-~geI’s wlil be free, when that regulation is adopted, to apply

flit’ .cj

~,er.titand to give rurther evidence in support of its

I:ccttion.

ORDER

For th~

basis of the

:~orvariance

reauoric ~ven in tne Board’s opinion, and on the

petitions and the Agenc::’s recommendations, the petitions

are

denIed.

I, Regina E. Ryan, Clerk of the Pollution Ccntrol

Board,

certify

that the a~boveOpinion and Order was adopted by the Board this

_____________

dayof

-

-p__c

,1971.

I concur:

I~L.

;(;q~’,,..

r

-

—

7

--dl.

•#a•.~

.1-:... ~

I dissent:

1-292