ILLINOIS POLLUTION CONTROL BOARD

March 22, 1971

LIPSETT STEEL PRODUCTS, INC.  

)

v.

)

PCB #70—50

)

ENVIRONMENTAL PROTECTION AGENCY)

Opinion and Order of 

the

Board (by Mr. Currie):

Salvage by open 

burning has been against the law since 1965.

Lipsett, part of a substantial interstate enterprise stretching 

far as Pennsylvania, asks 

permission to

salvage boxcars by open

burning until June 30,. 1971. 

say

no.

Lipsett has been burning several hundred retired railroad cars

each year since 1957 (R. 166) on its property at the south edge of

Granite City (Ptr’s Ex. C).

Immediately to the north are a number

of houses that were there many years before Lipsett was (R.90, 111,

122,

138)

whose occupants described the smoke from the burning as

a horrible nuisance in terms of sight, smell, and cleaninq problems,

and who vigorously

opposed the granting of a variance

(R. 96-110,

1~, 121, 3~—27. 133—34, 136—37, 139, 142—43).

Cars are burned

in order to remove tIieir

W000eii 

scrap metal as raw material for the steel industry

(R.14)

So far as the record shows, Lipsett made no at~empt to comply

with the law until Nay, 1969, who-n it filed a proqram for reducing

air contaminants

(ACERP) with the then Air Pollution Control Poard.

This plan provided flatly that the practice of open burning would

cease by the end of 1970:

Current “annualt’ and ttlot” hid contracts

for condemnad railroad

cars contaminated with wood will be phased out over the next 18

months with all burning operations

to cease by December 31, 1970.

The number of wood contaminated units purchased will be reduced

by one-third

by December 31, 1969.

The remaining two-thirds

will be phased out in the year 1970, with no wood contaminated

units 

being purchased or burned after December 31, 1970.

This

phase out period will permit our fulfilling

current contractual

obligations,

an orderly adjustment of our personnel requirements,

and the establishment

of new sources of scrap metal without wood

contamination.

(Lx.

B,

pp. 2-3).

A

further provision dealt with the contingency that technolociy would

develop

to allow the dismantling of cars containing wood without

pollution

If, during the phase out period, current research projects

present a 

technologically

feasible and economically reasonable

method of mechanically removing this

wood 

contamination or

1

—

34S

systematically incinerating it, Lipsett SteelProducts, Inc.,

will 

either install such equipment in a period of time reason-

able under the then circumstances or cease all open burning rail-

road car salvage operations. (Id,, p. 3).

The program was approved May 29, 1969, and periodic reports were

required (Ex, F).

The promised one-third reduction has plainly not yet been

achieved, more than one year after the agreed date. The initial

ACERP recited that 486 cars had been burned in 1968; the present

petition alleged that 30 to 35 cars are burned each month, or 360

or 420 per year, as contrasted with the 320 level promised by the

end of 1969, More than that, the company vice-president testified

that Lipsett at the time of the hearing processed approximately

200 cars each month (R,37, 41), a figure that suggests a gross vio-

lation of the ACERP condition and a decided lack of candor in the

petition since he also said 85 to 90 of the cars available require

burning (R.22, 37). There is no evidence of periodic reports.

Lipsett chose to put its trust in the search for control tech-

nology. Upon the well-publicized failure of the highly touted

Booz-Allen incinerator experiment in June 1970 CR. 25—27), the company’s

e~e~ ~--~inc.d hl~ ~n 

~i’ice,

which consists of gas-assisted

blowers that hasten combustion, of an enciosuie ~         

is to take place, and of an afterburner to consume the smoke collected

in the enclosure (R, 219—21). The blowers have been installed and

are in use CR. 183), The company says the blowers alone reduce

smoke emissions by eighty to ninety-five percent (R, 169, 230);

but several neighbors said the smoke was as bad as it had been before

(R,96—l00, 114, 125, 134, 136). The remaining equipment is to be

~installed by June 30, 1971. It is anticipated that upon completion

of the project cars can be burned in compliance with the emission

regulations, but the designer was not sure (R. 234).

Lipsett contends that to require compliance now would impose

an arbitrary and unreasonable hardship, as the statute requires for

a variance (Environmental Protection Act, Section 35). It argues

that to forbid open burning today would require it to shut down

CR. 34, 167), since its automobile scrap business, which is normally

of equal importance, has come to a halt due to the inoperability

of a press (R. 17), Lipsett also argues that there is no economical

alternative way to remove the wood from boxcars (R,23), and that there

are too few all-metal cars available to keep the business going CR, 48,

49, 77), To shut down, the company says, would not only deprive it

of profits but also put some fifty employees out of work (R. 155).

The union joined the variance request CR. 

209

and Ptr’s Ex. G).

In contrast, the company argues, the 

pollution which would be

caused if the variance is granted would be slight: Burning would

be conducted only when the wind is away from the neighbors (R.40),

only until June 30, and only with the blowers to reduce emissions

(R. 38—39)

Lipsett is no small polluter, and the site of its 

burning

* 346

operations is not remotely located, The neighbors made clear, and

the EPA confirmed, that the results of blower-assisted burning

are rather foul. Each car contains- 6000 to 7000 pounds of wood

(R. 21). There is tar in boxcar roofs and grease on the axles

(R. 246), and oil is used to ignite them (R. 169). Refrigerator

cars, which the company also wants to burn, are even worse, since

they contain not only wood but “other non-metallics such as 

the

insulation” (R, 38). All 50 cars now stored on 

the site are refriger-

ators (R. 74), Petitioner’s Exhibit I 

is a film showing two boxcars

burning side—by—side, one with 

a

blower 

in operation and the other

unassisted. After an initial startup period durine 

which time emissions

from the car being burned with the aid of a 

blower are as thick if

not thicker than those from the, other car, there is an obviously

noticeable visual difference in 

the opacity of the emissions from

the two cars. The company’s witnesses 

said this startup period

lasted only “twenty or thirty seconds”, or “30 to 45 seconds” (R. 169,

220), but they were contradicted 

not only by EPA testimony that the

dark emissions lasted for ten minutes (R, 286), but by the persuasive

visual evidence of the company’s own film. In either event we are

riot prepared to require the community to endure even thirty seconds

of such foul air, An EPA engineer testified that the smoke emitted

during the startup, even with a blower, was #5 Ringelmann CR. 286),

and we think that the public should not have to bear exposure to

~m-i~qjo~g

of this sort,

The film leads us to believe that the blower assistance greatly

reduces the duration of the emissions of thick black smoke from

the burning car. Total burning time Is two hours (P. 247), and

the emissions after the initial startup period, while significantly

reduced, are far from pleasant. Even though the blo~wer-assisted

burning may be better than unassisted burning, we. are not prepared

to say that the effect on the community of the emissions from

this process is tolerable, Driving at 70 m.p.h. in a 60 m.p.h.

zone may not be as dangerous as driving at 80 m. p. h. would be, but

it is in any event unacceptable and a clear violation of the law.

Nor is all harm avoided by burning only when winds are from

the north; not only can a wind shift cause odor and dirt problems

on residential property CR. 180—81), but the visual nuisance and the

considerable contribution to the serious particulate problems of

the St. Louis area remain, We cannot say that clouds of smoke

(R. 182) are acceptable within sight of downtown St. Louis just

because they are blown away from the nearest homes.

As

for hardship, we cannot but wonder what, if anything, was

being done to find a solution to the burhing problem during the four

years before the ACERP was approved. While we cannot impose penalties

for a delay that was forgiven by the approval of the ACERP, the delay

-~ 347

is relevant to the question of present hardship. The technology

of the proposed solution is simple enough, involving only the building

of a large enclosure to serve as a combustion chamber (R. 300-302,

325-26); with any real effort we think 

it

could and should have been

developed years ago. Moreover, the company flatly promised to stop

open-burning by the end of 1970, and 

it

has alleged no facts that

suggest any reason why 

it

was less feasible to do so in fact than

it had appeared in prospect. The development of the incinerator

was a bonus to the company; 

it

is not, however, an excuse for continuing

burning past the promised deadline, which itself was more than five

years after open burning was expressly forbidden.

We think that when a company 

obtains special permission, four

years after its offensive activities are 

outlawed,

to

continue

them for another year and a half in order to phase 

them out without

hardship, it should be held to its promise to stop at the 

end of that

time. That some hardship to the employees may result is regrettable,

but we cannot allow that to dissuade our denial of a variance in

every case, for to do so would be to pull the teeth from the statute.

We cannot permit a company to hide

behind the skirts of its employees.

It is Lipsett’s fault if innocent employees must 

suffer. And we

think it better that a

few

men who profit from the polluting operation

be laid off,

if that 

the case, than that the entire 

community

continue 

. c~

be-- 

su~-j

‘

~ t~ t~e 

effen~

s~nee of boxcar burning

any longer.

Insofar as the company is concerned, it has brought any hardship

upon itself 

by ,failing to live up to its promise and by not starting

earlier to find the necessary technology. As for the employees, we

think it important that those who work for polluters

recognize that

it is 

in their

interest to push 

as vigorously as they can for correction

of the problem.

And, as the company says, the time involved is only

three months, Moreover, it is not clear that denial of the variance

will 

result

in closing the facility. The Agency reminds us that

the Booz-Allen experiment showed the feasibility

of removing wood

with a high-pressure water jet CR. 194, 233, 

289), and the company

admits some of the cars it buys have no wooden parts (R, 

22, 49, 158).

Indeed, unless the company has falsified either the number -of cars

allegedly processed (200) or the number burned 

(30 to 35) each 

month,

there are plenty of all-metal cars to be had. Similarly, the

feasibility of remo~ing wooden parts of railroad cars with simple

hand tools should be more thoroughly explored. Although the company

said this method was not “economically possible”, and alleged that

it would not do the job, it conceded it had not tried it (R. 23, 193,

200, 201). This method might require more, rather than fewer employees,

but it would seem more appropriate for the company to bear any increased

labor costs that hand stripping might require than for the community

to continue suffering as a result of this operation. Finally, we see

no reason why the breakdown of the automobile press should be held

to the detriment of the :ong-suffering neighbors.

—

348

The burden of showing unreasonable hardship is a heavy

one, see

EPA v. Lindgren Foundry Co., 170—1 (Sept. 25, 1970). It has not

been met here. The state has been more than patient with those who

defile the air

by burning boxcars. We think it 

is time, six years

after the practice was prohibited, to allow the people to broathe

the decent air they were promised so long ago.

The

petition

for variance is denied. Any further open burning

will be subject to severe penalties under the statute.

This opinion constitutes the Board’s findings of fact, conclusions

of law,

and

order.

(Mr. Aldrich

and

Mr. Kissel dissented and will file dissenting

opinions).

poc~rt ~! R~’an,

C3erfr nf

1-he Illinois Pollution Control Board,

certify that the Board adopted the above opinion

c&1JU

UL~Cs

22nd

day of March

1971.

(17 ~61

__~

~.V.-;’.v”

/

REGXNA £

•

RYAN

~ERK OF THE BOARD

1 —

349