ILLINOIS POLLUTION CONTROL BOARD
November 19, 1992
OLIN CORPORATION,
)
)
Petitioner,
v.
)
PCB 92—130
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by 3. C. Marlin):
This matter is before the Board on a petition for variance
filed by Olin Corporation (Olin) on September 2, 1992. Olin is
seeking a variance for a period not to exceed three years from
the open burning prohibition of 35 Ill. Adm. Code 237.202. The
Illinois Environmental Protection Agency (Agency) filed its
recommendation (Agency Rec.) with the Board on October 16, 1992.
The Agency recommended that the Board grant Olin’s variance
subject to various conditions. No hearing was held on this
matter and no citizen objections have been received.
Previously, petitioner has received variances from the Board
which allowed it to openly burn explosive wastes and allowed
operation of explosive waste incinerators. (PCB 71—160 (1971);
PCB 71—371 (1972); PCB 71—517 (1973); PCB 79—234 (1980); PCB
81—118 (1982); PCB 83—102 (1983); PCB 84—69 (1984); PCB 85—86
(1985).) The three most recent variances allowed activity
similar to that involved in this petition. The proposed activity
in this variance differs from that in other similar variances to
the extent that Olin intends to use diesel fuel exclusively in
its tests and Olin will use different types of ammunition than
previously tested.
BACKGROUND
Olin develops and manufactures propellants, pyrotechnic
devices, medium caliber ammunition, and gas generator propulsion
devices for the U.S. government and foreign governments. (Pet.
at 1-2.) Olin’s plant which is the subject of this petition is
located in a former U.S. Army Ordnance Plant in rural Williamson
County, Illinois. (Pet. at 1.) In addition to the manufacturing
plant, Olin operates a test range and waste thermal treatment
facility on 290 acres of land two miles northwest of the City of
Marion, also in Williamson County. It is at this site where the
open burning proposed by Olin would take place. (Pet. at 2.)
ISSUE
Olin states that, as part of its contracts with the
O~3~-O~9~
2
Department of Defense, it is required to test the ammunition that
it manufactures by firing rounds, generally one per test, into
containers of fuel. (Pet. at 3.) Each test will require five
gallons of diesel fuel in the containers. (Pet. at 3.) These
tests are intended to represent the conditions of firing what is
typically referred to as “medium caliber ammunition” into the
fuel tank of an enemy transport vehicle. (Pet. at 2-3.) The
ammunition types which will require testing are 25MM SAPHEI-T and
25MM SAPHEI-T-SD. (Pet.at 3.) When a round of ammunition hits
the target container, it detonates and causes the fuel to ignite,
burn, and/or vaporize causing a violation of Section 237.102.
(Pet. at 3.) Olin estimates that approximately 80 of the five
gallons of diesel fuel in the container will create a fireball
upon impact leaving only 20 to burn out. (Pet. at 3-4.)
Finally, Olin estimates that the Government will require no more
than 30 tests per development contract. (Pet at 4.)
Olin and the Agency concur that the proposed testing will
not significantly impact the air quality of the area around the
Olin facility. (Agency Rec. at 4 and Pet. at 5-6.) The Agency,
based on Olin testing 30 rounds of ammunition where five gallons
of diesel fuel is burned and 31.71 grams of explosives are burned
per test, estimates the total emissions from Olin’s open burning
will be as follows:
Pollutant
Tons\Year
Particulates
0. 0002
Sulfur dioxide
0.0032
Carbon monoxide
0.0004
Nitrogen oxides
0.0014
(Agency Rec. at 4.) Olin’s figures differ only slightly from the
Agency’s figures. Olin calculates that 0.0015 tons per year of
nitrogen oxides will be emitted through the testing process.
(Pet. at Exh. C.) As seen above, the Agency calculates that
0.0014 tons per year of nitrogen oxides will be emitted.
AGENCY RECOMMENDATION
As earlier mentioned, the Agency supports the grant of
variance. The only contested issue between the Agency and Olin
is the specific terms of the variance. Olin requests a three
year variance. Olin sites anticipated future government testing
needs as the reason for needing a three year variance. (Pet. at
8.) Olin’s current testing phase is to end on February 1, 1993.
(Pet. at 8.) The Agency recommends that if Olin’s contract is
not renewed after December 31, 1992, that the variance should be
terminated on February 1, 1993. (Agency Rec. at 7.) In addition
to recommending an adjusted length of time for the variance, the
Agency makes several recommendations regarding the conditions to
~fl37-B 192
3
be imposed along with granting the requested variance. (Agency
Rec. at 6—9.)
In the past, Mr. Hal Armstrong, a citizen who lives
approximately one-half mile from the Olin facility objected to a
variance request by Olin on July 12, 1985. (PCB 85-86,
(September 20, 1985), at 1.) At the time, the Agency did not
find that the objection was related to the ammunition testing.
(fl.,
at 4.) The Agency did however contact Mrs. Armstrong on
September 24, 1992 in connection with this variance and she had
no complaints. (Agency Rec. at 3.) The Agency also contacted
State Senator James F. Rea, Representative Larry Woolard, the
Williamson County State’s Attorney, and the Chairperson of the
Williamson County Board. In addition, the Agency placed legal
notice in the appropriate newspaper. As of October 16, 1992,
when the Agency filed its recommendation, the Agency had received
no citizen complaints or objections to the granting of the
variance. (Agency Rec. at 3.)
DISCUSSION
In determining whether any variance is to be granted, the
Act requires the Board to determine whether a petitioner has
presented adequate proof that immediate compliance with the Board
regulations at issue would impose an arbitrary or unreasonable
hardship. (Ill. Rev. Stat. 1989, ch. 111
~,
par. 1035(a)).
Furthermore, the burden is upon the petitioner to show that its
claimed hardship outweighs the public interest in attaining
compliance with regulations designed to protect the public.
Willowbrook Motel
V.
Pollution Control Board, 135 Ill. App. 3d
343, 481 N.E.2d 1032 (1st Dist. 1985). Only with such showing
can the claimed hardship rise to the level of arbitrary or
unreasonable hardship.
A further feature of a variance is that it is, by its
nature, a temporary reprieve from compliance with the Board’s
regulations and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an
individual polluter Monsanto Co. v. IPCB, 67 Ill.2d 276, 367
N.E.2d 684 (1977). Accordingly, except in certain special
circumstances, a variance petitioner is required, as a condition
to grant of variance, to commit to a plan which is reasonably
calculated to achieve compliance within the term of the variance.
Olin, in its petition, contends that no other test method is
available to test the ammunition. (Pet. at 4.) Olin also
contends that it is not technically feasible or economically
practical to develop another test method. (Pet. at 4-5.) Olin
has not submitted a compliance plan in support of its petition.
The Agency does not contest the fact that given Olin’s testing
requirements, that compliance may not even be technologically
0137-0 193
4
possible. (Agency Rec. at 6.)
The Board finds that Olin has presented adequate proof that
immediate compliance with the regulation will cause an arbitrary
or unreasonable hardship. Therefore, the Board grants Olin’s
variance from Section 237.102 for a period of three years. It is
uncontested that emissions from Olin’s ammunition testing do not
significantly impact the environment in the area. It is also
uncontested that it is technically infeasible for Olin to conduct
these tests without violating Section 237.102.
The Board notes that Olin has requested and received eight
similar variances in the past and that Olin has a continuing
relationship with the government. In the interest of conserving
resources, the Board does not feel it would be prudent to force
Olin to petition for another variance after December 31, 1992, as
requested by the Agency, if Olin has not yet completed another
contract deal with the government. Based on past experience, the
Board sees no reason to believe that Olin will not renew its
current contract with the government or sign a new contract.
Therefore, the Board grants Olin’s variance for a period not to
exceed three years subject to various conditions.
The Board hereby imposes conditions similar to those in
previous variances as suggested by the Agency. The Board will
order Olin to report to the Agency in writing if it terminates,
extends or renews its existing contract with the government. In
addition, the Board will order Olin to report to the Agency in
writing if it negotiates any new government contracts relating to
ammunition testing. However, the Board will not order Olin to
submit to the Agency an evaluation of the contracts realized
under this variance which includes a comparison of Olin’s bids
with those of other companies as recommended by the Agency.
(Agency Rec. at 8.) The Board fails to see the environmental
relevance of asking Olin to report this information to the
Agency. Thus, the Board will not imposes condition
“J”
of the
Agency recommendation as a condition of this variance. (Agency
Rec. at 8.)
The Board notes that Olin in its petition voluntarily agrees
to work towards minimizing the impact of the testing thorough
self-imposed conditions. (Pet. at 7.) Olin agrees to conduct
testing only during daylight hours, to not test during, adverse
weather conditions, and to temporarily suspend testing if it
receives a complaint from a nearby citizen. (Pet. at 7.) The
Board’s order incorporates parts from both Olin’s agreement and
the Agency’s recommendation.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
U137-019~
5
ORDER
Olin Corporation is hereby granted varia1~cebeginning
November 19, 1992, from 35 Ill. Adm. Code 237.102 for ammunition
testing conducted at Olin’s Test Range and Waste Thermal
Treatment facility in Williamson County, Illinois, subject to the
following conditions:
1. This variance expires on November 19, 1995.
2. This variance pertains exclusively to open burning
relating to ammunition testing pursuant to contracts with the
United States Government.
3. Olin shall conduct the open burning activities only
between the hours of 8:00 a.m. and 5:00 p.m.
4. Olin shall place the target fuel container on a
concrete pad or other impermeable surface. Olin shall collect
and accumulate the unburned fuel and the extinguishing medium in
containers or a tank for proper disposal or recycling.
5. Olin shall provide a phone number available to receive
complaints on a 24-hour per day basis and shall provide such
number to John Justice at the address listed in number nine
below.
6. Olin shall assign one person the responsibility of
responding to citizen complaints, thereby allowing the public
access to some one person familiar with the test burning
procedures.
7. Should Olin receive private complaints concerning its
open burning practices, or should the Agency contact Olin
concerning complaints it has received regarding the open burning
which is the subject of this variance, Olin shall immediately
discontinue testing until meteorological conditions are such that
the open burning will not constitute a possible violation of
Section 9(a) of the Act.
8. Olin shall immediately discontinue testing when adverse
weather conditions, wind speed, wind direction, or meteorological
conditions are such that the open burning will cause a possible
violation of Section 9(a) of the Act.
9. Olin must keep available records of the testing as may
enable it to develop an ammunition testing procedure which does
not constitute open burning as defined in the Act.
10. Olin shall provide to the Agency quarterly reports of
0137-0195
6
the testing. The first such report shall be due thirty-two (32)
days from today on December 21, 1992. Such reports shall be sent
to:
Illinois Environmental Protection Agency Division of
Air Pollution Control
Attn: John Justice
2009 Mall Street
Collinsville, Illinois 62234
The reports shall include, as a minimum, the time and place of
each burning, identification of the quantity of oil burned,
meteorological conditions in the vicinity, and any complaints
received by Olin and action taken in response to any complaints.
11. Olin shall report to the Agency in writing, at the
address given below, if it terminates, extends or renews its
existing contract with the government. In addition, Olin shall
report to the Agency in writing if it enters into any new
government contracts relating to ammunition testing.
12. Within forty-five (45) days after November 19, 1992,
Olin shall execute a certification of acceptance of this variance
by which it agrees to be bound by its terms and conditions.
Failure to execute and forward the certification within forty-
five (45) days shall render this variance null and void. Olin
shall send the certificate to:
Ms. Janet A. Magnusun
Assistant Counsel
Bureau of Air
Illinois Environmental Protection Agency
P.O. Box 19276
Springfield, IL 62794—9276
This forty-five day period shall be held in abeyance for any
period during which this matter is appealed. The form of the
certification shall be as follows:
CERTIFICATION
The Olin Corporation, having read the Order of the Illinois
Pollution Control Board in PCB 92-130, understands and accepts
said order, realizing that such acceptance renders all terms and
conditions thereto binding and enforceable.
0137-0196
7
Olin Corporation
By__________________________
As Authorized Agent
TITLE
DATE
IT IS SO ORDERED
Section 41 of the Environmental Protection Act
(Ill.Rev.Stat. 1991, ch. 111 1/2, par. 1041) provides for appeal
of final opinions and orders of the Board within 35 days. The
rules of the Supreme Court of Illinois establish filing
requirements. (But see also 35 Ill. Adm. Code 101.246, Motions
for Reconsideration, and Castenada v. Illinois Human Rights
Commission (1989), 132 Ill. 2d 304, 547 N.E.2d 437.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
/~T7
day of
_____________________,
1992,
by a vote of
-.
.
/,.
/ / —~/
/~
Dorothy M./Gunn, Clerk
Illinois ‘P~ol1ution Control Board
0137-0197