ILLINOIS POLLUTION CONTROL BOARD
August
10,
1989
THE ENSIGN-BICKFORD COMPANY
)
AND TROJAN CORPORATION,
)
Petitioners,
v.
)
PCB 88—156 and
PCB 88—168
consolidated
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
ROY M. HARSCH,
ESQ., OF GARDNER, CARTON AND DOUGLAS, APPEARED ON
BEHALF OF THE PETITIONERS.
JAMES O’DONNELL,
ESQ., OF THE ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY, APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter comes before the Board from separate petitions
for variance filed on behalf of the petitioners, Ensign—Bickford
Company
(“EBC”) and Trojan Corporation
(“Trojan”)
on September
20,
1988.
Amended petitions were accepted by the Board from both
petitioners on March 15,
1989.
On March 15,
1989,
the attorney
for both of
the petitioners filed motions to consolidate the
cases.
These motions were granted and the cases were
consolidated by
a Board order of April
6,
1989.
The joint
petitioners filed a second amended petition for variance on June
21,
1989.
EBC and Trojan are seeking authorization
to open burn
explosive waste and explosives contaminated waste as permitted by
35
Ill. Adm. Code 237.103.
In their petition for variance,
the
petitioners request permanent relief
if Section 237.103
is
to
be
read to allow permanent relief
or until April
1,
1991 if
permanent relief cannot be granted.
However,
in their post-
hearing comments,
the petitioners state that they “desire
variance for as long
a period of time as the Board finds
justified and within authority.”
Hearing was held
in this matter on June
22,
1989 in Anna,
Union County.
Two witnesses testified on behalf of
the
petitioners.
The Illinois Environmental Protection Agency
(“Agency”)
did not call
a witness.
There were no members of
the
public present at the hearing.
On June
22,
1989,
the Agency
filed
a variance recommendation.
This recommendation was amended
1~2—fl7
—2—
on June 29,
1989.
In the amended recommendation,
the Agency
recommended grant of the variance until April
1,
1991 subject to
conditions.
The petitioners filed their post—hearing comments on
July 7,
1989 stating that they were willing to accept the
Agency’s recommended conditions except for the recommended time
period of the variance.
Based on the record, the Board finds
that the request for variance should be granted for a period of
five years,
from the date of this order, subject
to the
conditions recommended by the Agency.
Compliance with the rule
would impose an arbitrary or unreasonable hardship on the
petitioners.
BACKGROUND
EEC and Trojan are explosives manufacturers with operations
at
a facility located outside of the town of Wolf Lake, Union
County.
Trojan is the owner of the facility and EEC rents space
from Trojan.
Both are wholly-owned subsidiaries of Ensign—
Bickford Industries
(“EBI”).
The explosives manufacturing
facility is located thirty minutes equi—distant between
Carbondale,
Illinois and Cape Girardeau, Missouri on
approximately a 450—acre site.
The facility
is bordered by
Shawnee National Forest on the North and East, Wolf Lake on the
West and Illinois Route
3 and farmland on the South.
The nearest
residence is approximately one—quarter mile from the facility.
Wolf Lake has a population of approximately 250 people.
Both
Union County and all of its neighboring counties are attainment
areas for all criteria pollutants.
The petitioners note that the
nearest air monitoring station is located in Carbondale,
approximately twenty miles away.
There have been no violations
of particulate standards at this station in the last three years.
EBC manufactures explosive devices with non—electric
blasting caps
in an assembly—line process at the plant.
The
process also includes packaging and storage activities.
Currently,
EEC employs
38 people at the facility, with the number
of employees expected to rise to approximately 150 by 1991.
EEC generates small quantities of waste creating a potential
risk of explosion
in the course of manufacturing the Nonel
Primadet Assemblies.
This waste takes the form of off—
specification product, packaging materials, and explosive
contaminated laboratory waste.
Explosive—contaminated solvents
and waste water result from EEC’s routine cleaning,
repair and
maintenance functions.
The waste water contains explosive
HNX
aluminum particles.
Trojan manufactures cast boosters.
These boosters are
manufactured by melting and mixing TNT and PETN.
This mixture
is
subsequently poured into cardboard molds,
necessitating related
packaging and storage activities.
Explosive waste,
including
TNT,
PETN,
and pentolite,
and explosive—contaminated waste are
generated through the manufacture of these cast boosters.
This
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—3—
waste takes the form of off—specification product, packaging
materials,
and explosive—contaminated laboratory waste.
Currently,
Trojan employs approximately
50 people
at Wolf Lake.
The number of people employed by Trojan
is not expected to
increase appreciably.
Under present conditions,
EEC plans to open burn the
following types and quantities of explosive waste:
Explosive—contaminated solvent
130 lbs./week
Materials
to start
fires
25 lbs./week
Explosive—contaminated materials
100 lbs./week
(e.g. boxes, bags,
rags,
paper,
etc.)
Additionally, although EEC
presently ships
its waste water
to
Simsbury,
it proposes
to evaporate this waste
water and
to burn
the remainng small amount
of precipitated material.
If EEC shifts some of its blasting cap operations
to the
Wolf Lake facility in 1991,
it
is anticipated the the waste will
include 2,885 pounds/week of elemental lead,
which will melt
during burns,
resolidify and be sold as scrap, and
35 pounds/week
of pyrotechnic material including:
3.7 lbs Molybdenum;
15.3 lbs Red Lead;
1.0 lbs Tungsten;
7.5
lbs Silicon;
4.5 lbs Barium Chromate;
1.5 lbs Lead Chromate; and
1.5 lbs Potassium Perchlorate.
The total amount of waste generated by EEC’s operations will then
be the present
255 lbs/wk plus the 35
lbs/wk from the blasting
cap operations,
or
290 lbs/wk.
In the second amended petition,
the petitioners listed the
following types and quantities of waste
that would be produced by
Trojan:
TNT Waste
10 lbs/wk
PETN Waste
10 lbs/wk
Pentolite Waste
810 lbs/wk
Composition B Waste
21 lbs/wk
Materials to start fire
50 lbs/wk
Explosive contaminated
460 lbs/wk
Materials
(e.g.
boxes,
bags,
rags,
paper,
etc.)
Thus,
a
total
of 1361 pounds/week of waste
to be burned
is
anticipated by Trojan.
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—4—
The petitioners anticipate that open burning at the facility
will be done once per day on weekdays for a maximum of four hours
per day.
The petitioners have proposed a number of procedures
that should be followed when open burning in order
to ensure the
safety of employees and to meet all potentially applicable
RCRA
requirements.
Many of these procedures have been adopted by the
Agency as conditions to the grant of variance and are part of the
Board’s order.
PETITIONER’S COMPLIANCE PLAN
In the petitions of March 15,
1989, EEC and Trojan state
that they are unaware of any alternative
to open burning that is
safer or
less detrimental to the environment then open burning.
In the past, Trojan and EBC have disposed of their explosive
waste and explosive—contaminated waste by transporting the waste
to hazardous material operators or
to facilities outside the
State of Illinois where these materials are either incinerated or
open burned.
However,
the potential hazards associated with the
transportation of these materials and the reluctance of material
transporters to handle explosive waste effectively eliminate this
alternative to open burning.
The petitioners maintain that operational changes, such as
increased volume and modified explosives handling procedures can
only be accommodated by utilizing open burning disposal.
At
hearing,
the Director of Regulatory Compliance
for EEl noted an
Institute of Makers
of Explosive guidance manual for preparing
Part B RCRA applications for open burning and open detonation.
The manual was prepared with the assistance of comments from the
USEPA
(R. 11).
In the manual, open burning and open detonation
are the recommended ways for disposing of explosives contaminated
waste and explosive waste as well as all of
the packaging
materials
(R.
12).
In effect,
the petitioners’ compliance plan
is to
investigate possible methods of disposal during the variance
period.
If
a technically feasible and economically reasonable
disposal method
is identified,
the petitioners will devise a time
table
to come into compliance.
If an alternative to open burning
is not found, the petitioners will pursue an adjusted standard or
a site—specific rule change.
The agency noted in its
recommendation that explosives incinerators are used by the
explosives industry to render waste
inert.
However,
the
petitioners failed
to consider the installation and operation of
an explosives incinerator as an alternate compliance plan.
The
installation of an incinerator
should be investigated during the
variance period.
102—10
—5—
HARDSHIP AND ENVIRONMENTAL IMPACT
In their petitions for variance, EEC and Trojan maintain
that compliance with Section 237.102 would result
in an arbitrary
or unreasonable hardship by forcing EEC and Trojan to dispose of
their explosive waste in a manner which
is less environmentally
sound and more costly than the open burning of those wastes.
Trojan and EEC are presently complying with all applicable rules
and regulations.
However,
they believe that their
current
practices
regarding the handling,
storage,
transportation and
disposal of their waste materials are potentially more hazardous
and imply that this increased potential hazard results
in an
arbitrary or unreasonable hardship to transporters
or people
in
close proximity
to the storage areas
for
the waste.
EEC and
Trojan also argue that this payment of higher costs
to dispose of
waste in a more dangerous manner results
in an arbitrary or
unreasonable hardship.
Contrasting with the
issue of hardship
is the
issue of
environmental impact.
Trojan calculated the total weekly air
emissions from its burning of explosive waste to be:
Particulate
1.4 lbs.
Sulfur Oxides
0.1 lbs.
Carbon Monoxide
7.7 lbs.
VOC-Methane
1.2 lbs.
VOC-Nonmethane
2.7 lbs.
Nitrogen Oxides
0.5 lbs.
EEC also supplied this information from its anticipated open
burning:
Particulate
2.0 lbs.
Sulfur Oxides
0.1 lbs.
Carbon Monoxide
10.9 lbs.
VOC—Methane
1.7 lbs.
VOC-Nonmethane
3.8 lbs.
Nitrogen Oxides
0.8 lbs.
Both petitioners maintain that these projected emissions are so
small that
the impact on ambient air quality could not be
measured at the boundaries of the site.
The Agency states
in its
recommendation that the open burning
of the waste will have some
unquantified environmental
impact but should not cause any
violations of the NAAQS.
AGENCY RECOMMENDATION
In its amended recommendation of June
29,
1989,
the Agency
recommended that
the petitioners be granted
a variance under
Section 237.103 until April
1,
1991 subject
to the conditions
adopted
in the Order.
The Agency
is willing
to allow the
petitioners time to investigate various alternative compliance
plans,
including the installation of
a permitted explosives
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—6—
incinerator, or
to seek an adjusted standard or a site—specific
rule change.
The Agency states that the grant of the variance
would not be inconsistent with federal law.
The Agency did express opposition to the grant of a
permanent variance stating that permanent variances do not exist
in Illinois.
The Agency maintains that because the Board
developed regulations to allow open burning through the variance
procedure,
it
is logical
to assume
the relief was meant to be
short term.
CONCLUSION
The Board finds that EEC and Trojan have presented adequate
proof that immediate compliance with the regulations would impose
an arbitrary or unreasonable hardship.
Further the environmental
impact of granting the variance
is considered to be minimal.
Accordingly,
the variance will be granted subject
to conditions.
The remaining issue
to be addressed is the time period of
the variance.
The Board rejects the petitioners’
request for
a
permanent variance because Section
36(b) of the Illinois
Environmental Protection Act does not allow for the grant of
a
variance for
a period exceeding five years.
However,
the Board
is of the opinion that a grant of variance until April of 1991,
as recommended by the Agency, may not allow the petitioners
sufficient time
to investigate the available alternative
compliance measures.
The petitioners stated that the size of
this operations would be increasing by 1991.
It seems premature
to expect the petitioners
to commit
to a compliance plan before
they can determine the impact that expansion will have on their
requirements for open burning.
The Board
is convinced that the
environmental impact of this open burning
is minimal and will not
lead
to violations of the
NAAQS
in this attainment
area.
Therefore,
the Board
is willing to grant
the petitioners
a
variance for the maximum allowable time of five years
to
investigate possible alternative methods of disposal.
If
a
technically feasible, economically reasonable disposal method is
discovered during the variance period,
the petitioners will
be
required
to devise a timetable to come in to compliance.
This Opinion constitutes the Board’s findings of fact and
conclusion of law
in this matter.
ORDER
The Ensign—Bickford Company and Trojan Corporation are
hereby granted varian~efrom 35
Ill. Adm. Code Section 237.102
and authorization to open burn explosive waste and explosive
contaminated wastes as permitted by 35 Ill. Mm.
Code 237.103,
for
a period of five years. from the date of this order, subject
to the following conditions:
102—12
—7—
a.
Petitioners shall maintain records with weekly totals,
by type of waste burned,
(i.e. TNT waste, PETN waste,
etc.).
A compilation of these records shall be
submitted on a quarterly basis
to the Agency.
These
records shall be available for Agency inspection at
anytime when petitioners are
in operation.
b.
Petitioners shall submit progress
reports on a quarterly
basis
to the Agency.
The report shall detail compliance
developments,
a
list of companies and individuals
contacted regarding alternative methods of disposal with
documentation,
to include copies of correspondences, and
any test results of alternative methods of disposal, a
list of
any trade associations contacted regarding
possible alternative methods of disposal and a list of
trade publications and reviews consulted regarding
possible alternative methods of disposal.
c.
The reports
in paragraphs
(a.) and
(b.) should be
addressed to:
Mr.
John Justice, Regional Manager
Division of Air Pollution Control
Illinois Environmental Protection Agency
2009 Mall Street
Collinsville, Illinois
62234
d.
Petitioners shall conduct open burning no more than once
a day, Monday through Friday,
for
a maximum of four
hours per burn.
e.
Open burning shall only take place
on calm clear days on
which wind speed
is
10 miles per hour or
less.
f.
Petitioners shall use cages
to burn explosives—
contaminated papers so that the disbursement
of any ash
is nominal at best.
g.
Petitioners shall burn TNT waste,
PETN waste, Pentolite
waste and Composition
B waste upon
a sand bed of
at
least
4 inches.
h.
Petitioners shall use
a concrete pad to prevent residual
waste and waste constituents from contacting surface
soils
(except as noted
in Condition
(g)
above).
i.
Petitioners shall promptly clean up any ash after every
burn.
j.
Petitioners
shall have fire prevention plans and
equipment,
as described in the petition,
ready and in
place at
the facility prior to the first burn.
k.
Petitioners shall
fence off the enter burn area prior
to
the first burn.
102—13
—8—
1.
Petitioners shall notify the surrounding community,
prior
to the first burn,
that there will be periodic
open burning.
A copy of the notification shall be sent
to the Agency.
m.
The above mentioned notification shall include a phone
number
for nearby residents to call in the event
of any
complaints.
n.
Any complaints shall be forwarded to the Regional Office
in Collinsville within 24 hours.
o.
Petitioners shall not burn more than the following:
Ensign
Explosive—contaminated solvent
130 lbs/week
Materials
to start fires
25 lbs/week
Explosive—contaminated materials
100 lbs/week
Pryrotechnic materials
35 lbs/week
Trojan
TNT waste
10 lbs/week
PETN waste
10 lbs/week
Pentolite waste
810 lbs/week
Composition B waste
21 lbs/week
Materials to start fires
50 lbs/week
Explosive—contaminated materials
460 lbs/week
p.
Compliance with Condition
(0.)
shall be on a quarterly
basis.
The weekly average over the quarter shall
be
equal
to or
less than the listed quantities.
q.
Within
45 days of
the date of
this Order, petitioner
shall execute and forward
to William D.
Ingersoll,
Enforcement Programs, Illinois Environmental Protection
Agency,
2200 Churchill Road,
P.O. Box 19276,
Springfield, Illinois 62794—9276,
a Certificate of
Acceptance and Agreement to be bound
to all terms and
conditions of this variance.
The 45—day period shall be
held
in abeyance during any period that this matter
is
being appealed.
Failure
to execute and forward the
Certificate within 45 days renders this variance void.
The form of said Certification shall
be as follows:
102—14
—9—
CERTIFICATION
I, We,
having read the Order of the Pollution Control Board, in PCB 88-
156 and PCB 88—168, dated August
10, 1989, understand and accept
the said Order,
realizing that such acceptance renders all terms
and conditions thereto binding and enforceable.
Petitioner
By:
Authorized Agent
Title
Date
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1985 ch. lll~par. 1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I, Dorothy N Gunn, Clerk of the
Illinois Pollution Control
Board, hereby certify t)~atthe above Order was adopted on the
/~)~-
day of
_..-~t~-~-
,
1988, by a vote of
-
C
•
~
Dorothy M.(’/unn, Clerk,
Illinois P~llutionControl Board
102—15