ILLINOIS POLLUTION CONTROL BOARD

May

3,

1971

Hardwick Brothers Company

PCB 71—17

Environmental Protection Agency

Oninion

of

the

Board

(by

Mr.

Kissel)

Hardwick

Brothers

Comoany

(Hardwick)

filed

petition

for

variance with

 the Pollution Control

 Board

on

February

8,

 1971,

and

an amended

petltlon

with

the

 Board

on

March

30

 1971.

 Hardwick

 asks

its

notitions

for

variance

from

the

existing

law

and

regulations

allow

onen

burning

trees

and

wooden

underbrush

over

the

ceriod

the

next.

year.

The

Environmental

Protection

Agency

(Agency)

rec-~

ommendod

that

the

 setition

for

variance

denied

because

the

Environ-

mental

Protection

Act

(Act)

contains

clear

orohibition

of

open

burnino,

SF30

Section

 9 (c)

 of the Act.

hearing

the

petition

c id

~oi

da’~i

z~.Lur

 11 ~aaoi~u

rii

11 before ocarina

officer

nat~-irf.~

C.

Huohes

ifs rdwi ca

is

a

rtsorsb

jo,

located

Beards

town,

Illinois,

whose

orinci

nal

business

oi.’er

the

last

wears

has

been

“dyer

‘

w~rt

 i-how

cave

‘~

rr~rm~d

~

hur

drods

is’

ats

 ~nq cart~

~or

s ~ru~ohtL

n—

~

~

ea~-

nu~idan~ c1rcL.naa

“truct

rc—

Crosentis

•

Heodwick

the

contractor

of.:

the

Army

Corns

Engineers

ccLi

0r,ttd

~27—/

L~D~-Q34~

wrii

 ci ~nvolve3

i’~

north

tork

the

iP’~

e’

s’

~h

~i-°,

d

ci

 t0e Salire

Fives

near

~Jie

ena

o:Li~

ni00000

sax

oslas

north.

Essentially,

Hardwact

will

ore

,oie

strai~

~ter,

the

 river,

disnose

the

snoil

which

comes

from

iso

 I —~r~h

 -~re~

~

undertoush

a~d

roes.

 when he

Os:c.io

threunt

with

its

work

on.

the

Mi’ier,

the

:H~’erwLil

ho

si-i

a:. once:.

deenex

and

 eli.

much

 less

foliated

teas

~nt

~cd~

c~ai~

~

‘

 ri n—rat

a~oce

~nc

ho~ow

::crmnl.

water

line

to

orewent

erosion

the

rawer

hank.

iL~

 Larcre

 eras’

 fines

 to aredoe

tnt

rir’er

 alone with bulldozers

 bush

hoes

and

chain

 saws

 to cut

the

nil

 e,rjrusn

 coo. races

100

dran

Itnes

•

 which are each

 “seven

 years

‘~

)

I

ba

‘hys~

cal n,

drec’qsd

~lo-’u

~oe

i-otters of

the

river,

 These

 hone

buckets

(one

 each side of

the

streai-~)

W11i

uock

 t.he

slit

from

the

 bottom

the

 river

and

 denosit

the

 ~‘s’~oi1’

the

bank

within

the

 rioht of

way

 provided by

the

Coros

whirR

.,.s

 400 feet

(150

feet

 on each

 side of the stream and

 annroxiir.atcly

101

 feet

stream

width

noon

comnietton

the

Pro

ect)

The

project

oust

comoleted,

according

the

 terms

the

Corns

contract,

Seotember

1972,

For

each

day

after

that

date

the

oroject

not

corarleted,

ilardwick

must

pay

penalty

the

Corps

$125

per

day~

2—

Hardwick~sprincipal problem

 is what to do with

 the underbrush

and the

 trees

 (the

“debris”)

 which will be uprooted as

 a result of

Hardwick~s

activities

under

the

Corps

contract.

Originally,

according to

 the Hardwick witnesses, Hardwick believed that the

underbrush

 and trees would be buried on the right of way site,

While

 there

 is some confusion in the record, Hardwick apparently

assumed that there was sufficient room on the right of way to bury

 the debris

 and the spoil,

 and Hardwick~s bid was made on that basis,

An explanation of

 the bidding and bid documents is necessary.

The Corps asked for bids sometime earlier

 this

 year

 (the date

is

 not given in

the

 record)

and

 the potential bidders were given

thirty days within which

 to submit their bidS

 Hardwick witnesses

said that really the bid

had

to

be

 prepared within 20 days because

bid

bonds

must

obtained

(as

practical

matter)

before

the

bid

reviewed

and

compiled,

The

Corps

bid

documents

provided

that

the

debris

burying

would

allowed

the

right

way,

and

fact,

set

specifications

how

the

debris

would

buried~

But

this

contract document of the Corps apparently did not absolutely assure

the bidders that the debris could be

 so buried.

 Further,

 the contract

documents did not contain the exact quantity of material which would

have to be disposed of, but did give

 the exact length of the project

and width of the right of way,

 (actual aerial photographs of the

river were among these documents)

 Without the soecific direction

of the Corps that the debris would have

 to be hauled away instead

of buried on

 the, right of way, Hardwick assumed that there was

sufficient amount of right of way to bury

 the debris,

(R,

29,

61)

This assumption was apparently made by .others,

 as well, who bid on

this

 job because the record shows that the bids made by others were

close in amount to

 the Hardwick bid on

 the clearing and disposal of

debris~ Hardwick’s bid

 on this part

 of the project was.$l85,680~

While Hardwick knew the length and width of the right of way, which

is

 a key fact in making the determination

as

 to when the

 .debris could

be buried, and could estimate from the aerial photographs

 the amount

 underbrush and

 trees,

 it did

not

 show

 the quantity of excavation

(R~63).

 (It is apparently

 the custom in bidding on projects

 of this

kind

 to bid without knowledge of that quantity,)

 According to Hardwick,

the only way that to have determined whether debris and

 the spoil could

be buried in the right of way would have been to cross-section

the

project.

 “Cross—sectioning”

 is the

 process of measuring ground

level by

 the use of actual

 surveys and mathematical

 calculations.

This

 is apparently

 a time consuming

 job which could not have been

completed during the

30

day

 period before’ Hardwick~sbid

was

 submitted,

After Hardwick received the contract,

 it did,

 in fact,

 “cross-section”

the project,

 and after

 the cross-sectioning

was

 completed, Hardwick

concluded

 that the debris

 could not be

 buried

on

 the right of way~

An Agency witness indicated

 that

the

 computations

 could have been made

from

the

 information given by the Corps, but

 by his

 own admission

he ‘did not

 in his quick calculations

 include all

 of the elements

necessary to make

an

 accurate calculation,

—

560

ALTERNATIVES

 TO, BURYING

There

 are alternatives

 to burying the debris on the right of

way

 1) burning of the debris,

2)

 chipping and hauling the debris,

and

3)

 not removing the debris.

 We must examine each’ of the

alternatives.

1.

 NOT REMOVING THE DEBRIS

There was

 some testimony

 in the record which indicated that

Hardwick could perform its contract with

 the Corns without removing

any of the underbrush or trees.

 This seems impractical,

 and Hardwick

could not perform its agreement. without the removal.

 Large equipment

such as the drag line

 and the bull do~ers could not be operated if

the

 trees and underbrush were not removed.

 Also,

 the Corps wants the

banks stripped of

 the debris

so

 as to allow the quicker movement of

water through the area.

 The removal

 is part of the agreement,

and

if the contract

is

 to be satisfied,

 it must be

 done.

2.

 CHOPPING

 & HAULING

The debris could be hauled to another site and buried there.

The detriment

 in doing this,

 as far as Hardwick

 is concerned,

is

the

cost.

 Uncontradicted testimony demonstrated that the cost of

clearing

 the debris,

 chipping some, hauling some

 and selling some would

be

 a total of $446,000.

(R.

 81-2)

 The fair market value of the debris

that could be sold was estimated at $49,500,

 These

 costs and credit

would amount to an additional expenditure by Hardwick

 (over the amount

actually bid to dispose of the debris in the original contract)

 would

be $210,931.44.

 (Testimony on the substantiation of these costs was

presented in detail and can be found in the record pages 81

to

 94.)

In addition, the hauling of the debris would extend the time for

completion of the project because the

 trucks, which would haul the

debris away, could

 not reach the banks

 of the river

 at certain times

of the

 year.

 The soil would be

 too soft.

 Delay would subject Hardwick

to penalties under

the

 contract.

3,

 BURNING OF THE DEBRIS

Disposal

 of the debris by open burning could be accomplished.

The debris would be put

in

 a wind row, which is

 a continuous pile along

one side of the river.

‘

 The pile would be

20

to

30

 feet, wide

 and about

8 feet high.

 The debris would have

 to be bulldozed into this pile.

Burning would take place one day per week

 for 12 hours on that day,

and would continue for

 a period of one year.

 During each day of

burning, Hardwick would burn

 1500 feet of the row

 of debris.

No

oil

 or other contaminants would be needed

 to start

 the fire or keep

it.going and the burning would only take place during the daylight

hours when the wind was more than

 15 mph from the west.

 Even using

the open burning there will be

 some delay

in

 completing the project,

thus adding

 to the possibility that penalties will have to be paid.

—

561

THE

 VARIANCE

Now the question of

whether the variance should be granted.

In

order for a petitioner to be granted a variance by the Board he must

prove that compliance with the law will create an arbitrary or unreason-

able hardship.

 (Section 35 of the Act.)

 This Board has consistently

held that

the

question of determining whether an arbitrary or

unreasonable hardship exists is determined by a balancing process,

that is, balancing the benefits to the petitioner and the public in

granting the variance versus the harm

 to the public and the petitioner

in denying the variance.

 We have often said that this is not an equal

 balance, rather the benefits to be obtained by the public and the

petitioner must be significantly greater in allowing the variance,

than the harm caused by denying it.

 This case poses

 a difficult

problem in that regard.

 Open burning has been outlawed in this state

for a great many years, and this ban was reaffirmed by the Illinois

legislature when it passed the Act.

 See Section

 9(c)

 of the Act.

Further,

 this Board has held

 to the position that variances will only

be granted if the petitioner has a specific program for reducing

emissions over a reasonable period of time.

 See Mt. Carmel Public

Utilities Co.

 v. EPA, PCB 71-15.

 In this case Hardwick has no program

as such,

 except to manage the open burning so that it will have a

minimal effect on the people in the surrounding area.

 Still, weighing

all factors, we believe that the variance should be granted under

conditions which will be outlined.

To not allow the variance,

 as conditioned, in this case would

pose a hardship on Hardwick without a significant

 benefit

 to the

public.

 The only viable alternative available to Hardwick known to

the Board at this time

 is to haul the material from the site, and dump

it somewhere else.

 The cost of this to Hardwick would be over $210,000.

This amount represents three times the amount of profit that Hardwick

expects

 to realize on the Saline River project, and, according to one

 of the partners of Hardwick, the company is not in a position to sustain

such

 a loss.

 If the loss were imposed on the company, it would go

out of business.

 This would not only have an impact on the company

and its employees, but also would severely affect the completion of

the Saline River project.

 While this Board does not by this decision

condone

 (or condemn) the use of dredging and straightening rivers as

solutions to problems,

 still the testimony in the record by

the

head

of the local conservancy district was that there

 is a mosquito and

flooding problem caused by the River in its present condition.

 Delay

of that project is simply not worth the relatively minor impact on

the environment of the open burning proposed by Hardwick.

 However,

this Board does not believe that all of the possible alternatives

to

open burning have been adequately explored by Hardwick.

 Therefore,

the variance will be granted until September

1,

 1971, at which time

it will expire.

 On or before August 1, 1971,

 if Hardwick wishes this

Board to extend the variance, Hardwick will file with the Board and

the

 Agency a written report on the following:

—

562

1.

 The possibility of the acquisition of additional right of

 During the ensuing months, Hardwick should make

contact with the Corps to determine whether additional right

of way can be made available so that the debris could be

buried there.

 If additional right of way is available, at

any

 time in the near future,

 the debris could be buried, which

would satisfy everyone.

2.

 The use of an “air curtain” in burning.

 One of

 the new methods

for controlling open burning which has

 come to the knowledge

of this Board is the “air curtain.”

 This device, testified

to in the Board’s hearings on the Open Burning Regulations,

R70-ll

is

 a device which forces air into

 the burning site

causing better combustion and very little,

 if any,

 smoke.

Hardwick should investigate the possibility of,

 and the economics

in, using the

 “air curtain” in its burning.

During the variance period,

 the burning will be done under

specified conditions.

 The burning will be done one time per week,

during the day time hours when the wind from the west is gr~~erthan

15 miles per hour.

 No contaminants will be used to start or keep up

the burning.

 The area surrounding the area of

 the burning is sparsely

populated,.

 There

 is not a concentration of population within four

miles of the project site.

 There are people apparently living on

 farms in the area, but there are only

 10 persons per square mile, which

is few indeed.

 It is hard to imagine that anyone or anything will

be affected to such

 a degree,

 so as to require this Board to deny the

variance, thus putting this company out of business

 and delaying the

project.

 The alternatives presented in the record are too costly for

the harm that will be caused.

 It may be that after receiving the written

report of Hardwick,

 as required in this opinion, other alternatives

will present themselves,

 and will be required by this Board.

One of the factors which influenced the decision of this Board

is that Hardwick does not choose open burning as the first alternative.

Over and over again in the record,

 the witnesses for Hardwick made

it clear

 that the company would rather bury

 the material in the right

of way.

 But from what we know, sufficient right of way is not available.

Additional right of way may be available.

 If it is, Hardwick would

prefer to use it as we would.

One additional issue must be discussed.

 This case is the first

one presented before the Board regarding the projects

 of the Corps

in straightening and deepening Rivers.

 It is the first time

 the Board

has been faced with

 the decision to allow burning because

 a contractual

agreement

 (between

 the Corps

 and Hardwick) did not anticipate that

 sufficient room wasn’t available

 to bury the debris gained from the

project.

 While the Board is inclined in the case of first impression

to grant the variance under certain conditions because of the hardship

imposed on Hardwick and little effect on the surrounding area,

the

Board may not be so inclined in the

 future.

We

 feel that in future

I

—

563

projects

 of this kind it

 is incumbent upon the Corps to assure the

contractors that sufficient right of way is available

 to bury the

debris.

 We feel that the burden should be on

 the Corps

 to do

 this

investigation and make this assurance because the Corps

has

 the time,

prior

 to putting the project out for bid,

 to completely cross-section

the site

 for each project.

 The contractors only have between

20

and

30

 days

 to bid on the job and, according to the testimony,

 this

is

insufficient

 time

 to make

 the necessary

 exact evaluations

 as to

whether sufficient right of way is available.

 From this time, con-

tractors who bid on these projects should, notwithstanding

the

 prior

custom and practice of assuming that sufficient ‘right of way

is

available

 to bury the debris,

 not bid on projects on which

 the Corps

has not detailed this information.

 To do so, may mean economic losses

to that contractor because

 this Board may not be

 as lenient

in

future cases as

 it must be in this one.

The petition for variance

 is hereby granted under

 the conditions

outlined in the order, below.

This opinion constitutes

 the findings of fact and conclusions

of law of

 the Board.

After consideration of the testimony and exhibits

 in this

 case

the Board hereby orders

 the following:

1.

 The petition for variance of

 Hardwick is hereby granted and

Hardwick is hereby allowed

 to conduct open burning of trees

 and under-

brush gathered as

 a result of its work on the straightening and

dredging project on the north fork of the Saline River under the

following conditions:

a.

 The burning shall be conducted on only one

 day per

week, durinq the daytime hours;

b.

 The amount of

the

 burning shall be limited to

 the amount

stated in the record,

 that is,

 the wind

 row shall be no

greater than

30

 feet wide and

 8 feet high;

c.

 The burning shall be supervised by sufficient personnel

 so as

 to prevent the fire from spreading beyond

 the wind

row;

d.

 Nothing other than trees and underbrush taken from the

Saline and its banks shall be burned;

e.

 No oils or other contaminants shall be used

 to start the

burning,

 or keep it going;

and

f.

 Hardwick shall make

 a reasonable effort to bury

the

trees and underbrush on the right of way.

—

564

—7—

g.

 Hardwick shall bury

 the ashes resulting from the burning

of debris,

so

 as not to cause any harmful effect on the

River.

h.

 This variance shall continue until, but not after

September

1,

 1971, unless further extended by

 this Board.

2.

 Hardwick shall advise the Agency in writing on each occasion

when

burning

has

occurred.

Such

report

shall

contain

information

concerning the day on which

 the burning occurred, the time during

which burning occurred, the amount and the identification of material

burned,

and

 the efforts made by Hardwick to bury the material on the

right of

 way.

3.

 Hardwick shall,

 on or before July

1,

 1971,

 file

 a written

report with

 the Board and the Agency detailing its investigations,

and conôlusions on

 the following:

a.

 The possibilities

of,

 and economics in acquiring

additional right of way on the Saline River Project;

and

b.

The

 possibilities

of,

 and economics

 in, using

 an “air

curtain” device

 in the burning.

The Agency shall review the reoort filed by Hardwick and make written

recommendations

 concerning the report to the Board within l5days

after receipt of the report.

I, Regina E.

 Ryan, Clerk of

 the Pollution

Control

Board,

certify

that the Board adopted the ~

—

565