00-24.PDF

ILLINOIS POLLUTION CONTROL BOARD

November 18, 1999

THE ENSIGN-BICKFORD COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB 00-24

(Variance - Air)

OPINION AND ORDER OF THE BOARD (by N.J. Melas):

This matter is before the Board pursuant to a petition for variance (petition) filed by the Ensign-

Bickford Company (EBCO) on August 11, 1999. Pursuant to the Illinois Environmental Protection Act

(Act), the Board is charged with the responsibility of granting variances from Board regulations

whenever immediate compliance with Board regulations would impose an arbitrary or unreasonable

hardship on the petitioner. 415 ILCS 5/35(a). The Illinois Environmental Protection Agency (Agency)

is required to appear in hearings on variance petitions. 415 ILCS 5/4(f). The Agency is also charged

with the responsibility of investigating each variance petition and making a recommendation to the Board

as to the disposition of the petition. 415 ILCS 5/37(a).

EBCO is seeking a variance which will allow it to open burn certain explosive wastes pursuant

to 35 Ill. Adm. Code 237.103. Pet. at 1.

EBCO has waived its right to a hearing in this matter, and

no hearing is required pursuant to the Board’s rules. Pet. at 10; 35 Ill. Adm. Code 104.124 and

104.160(c). On October 26, 1999, the Illinois Environmental Protection Agency (Agency) filed its

recommendation in response to the petition. The Agency recommends that the Board grant the petition

subject to certain conditions. Rec. at 1. On November 9, 1999, EBCO filed a “Motion for Leave to

File Response

Instanter

(sic)” and “Ensign-Bickford Company’s Response to Illinois EPA’s

Recommendation” (response). The Board grants EBCO’s motion for leave to file response

instanter

In a variance proceeding, the burden is on the petitioner to present proof that immediate

compliance with Board regulations would cause an arbitrary or unreasonable hardship which outweighs

public interest in compliance with the regulations. Willowbrook Motel v. IPCB, 135 Ill. App. 3d 343,

349, 350, 481 N.E.2d 1032, 1036, 1037 (1st Dist. 1977). Pursuant to Section 35(a) of the Act, the

Board finds that EBCO has presented adequate proof that immediate compliance with the Board

The petition for variance will be cited as “Pet. at .”, the Agency’s recommendation will be cited as

“Rec. at .”, and the response will be cited as “Res. at .”

regulations for which relief is being requested would impose such a hardship. 415 ILCS 5/35(a)

(1998). However, EBCO has not demonstrated to the Board that this variance should begin

retroactively - on August 10, 1999. The variance herein will begin as of the date of this order.

Furthermore, the Board will not grant the variance for the requested five years but instead will grant it

for two years. The Board notes that it may grant EBCO’s concurrently-filed adjusted standard (

In re

The Ensign-Bickford Company, AS 00-5) prior to the two-year deadline, thus superseding the variance

herein. EBCO’s requested variance relief is therefore granted in part and denied in part, subject to the

conditions specified at the end of this order.

BACKGROUND

The Facility

EBCO operates a 456-acre explosive products manufacturing facility, which is located near the

town of Wolf Lake, Union County, Illinois. The facility borders the Shawnee National Forest, Wolf

Lake, and farmland. Pet. at 3-4; Rec. at 2. The facility is situated approximately one-half hour

equidistant from Carbondale, Illinois and Cape Girardeau, Missouri. The town of Wolf Lake has a

population of approximately 250 persons, and the nearest residence is approximately one-half mile from

the EBCO facility. EBCO is the largest manufacturing employer in Union County and has

approximately 250 employees. Pet. at 4.

During the manufacturing process for the explosives, EBCO generates waste explosives, namely

off-specification product and a variety of explosive-contaminated wastes including packaging materials,

wastewater treatment sludge, spent activated carbon, and solvent from laboratory and maintenance

procedures. Pet. at 3-4; Rec. at 2-3.

Prior Variances

EBCO has previously received several variances from the Board. In 1989, the Board first

granted EBCO and the Trojan Corporation (both wholly-owned subsidiaries of Ensign-Bickford

Industries) a variance authorizing them to open burn explosive waste for a period of five years. EBCO

and Trojan Corp. v. IEPA (August 10, 1989), PCB 88-156 and PCB 88-168. In August 1991, the

Board modified the 1989 variance, thereby allowing EBCO and Trojan Corp. to combine their open

burning limitations and also allowing a greater amount of explosive waste to be burned. EBCO v.

IEPA (August 22, 1991), PCB 90-242. In September 1991, the Board again modified the 1989

variance, allowing EBCO to flash metallic process equipment and open burn wooden process

equipment for one year. EBCO and Trojan Corp. v. IEPA (September 26, 1991), PCB 91-96.

With the instant petition, EBCO seeks to extend its most recent variance that the Board granted

in 1994 which allowed EBCO to open burn its explosive wastes until August 10, 1999. The 1994

variance provided for an increase in the total amount of wastes to be burned over the previous

variances, and it also combined limits on burning certain types of materials. EBCO v. IEPA

(September 1, 1994), PCB 93-139.

The Board has also granted provisional variances to EBCO. In 1990, the Board granted

EBCO a 45-day provisional variance to allow the open burning of two wooden buildings contaminated

with explosive material that were decommissioned as the facility was modernized. EBCO v. IEPA

(August 26, 1990), PCB 90-83. On November 4, 1999, the Board granted EBCO a provisional

variance to allow open burning pursuant to the terms set forth in PCB 93-139 with the exception of

flash burning equipment potentially contaminated with explosive waste. EBCO v. IEPA (November 4,

1999), PCB 00-78. Provisional variance PCB 00-78 expires December 10, 1999.

As of January 1, 1996, Trojan Corp. merged with EBCO. EBCO is the successor

corporation. Pet. at 3.

MOTION FOR INCORPORATION

Pursuant to 35 Ill. Adm. Code 104.123(a), EBCO requests that the record in addition to the

opinion and order from PCB 93-139 be incorporated into the instant petition in lieu of resubmitting

those documents. Pet. at 1-2. The Board grants the request.

THE REQUESTED VARIANCE, AGENCY RECOMMENDATION, AND RESPONSE

EBCO’s instant petition seeks relief from Section 237.102 of the Board’s rules pursuant to

Section 237.103. Section 237.102 prohibits open burning, but Section 237.103 allows open burning of

explosive wastes only if such burning is allowed by a variance. 35 Ill. Adm. Code 237.102, 237.103;

Pet. at 1; Rec. at 4. The Agency does not have authority to issue permits for open burning of explosive

wastes. Rec. at 4.

In the instant petition, EBCO is seeking an extension of its PCB 93-139 variance with

modifications. EBCO seeks to burn explosive waste, burn potentially explosive-contaminated wastes

including some of its buildings, and flash burn equipment potentially containing residues of explosive

materials.

EBCO plans to decommission six of its buildings which are all potentially contaminated with

explosive materials. The buildings contain wood, concrete, brick, and various metals including steel.

The equipment to be flashed will either be modified, replaced, or maintained. Pet. at 4-6.

Flashing is a method to thermally sanitize equipment that may contain residues of potentially explosive

materials. See EBCO and Trojan Corp. v. IEPA, PCB 91-96, slip op. at 1.

Waste Categories

The current variance in PC 93-139 limits EBCO’s open burning as follows:

Materials to start fires

100 lbs/week

Explosive-contaminated materials

5,000 lbs/week

Pyrotechnic materials

50 lbs/week

Combined trinitrotoluene (TNT) and pentaerythritol

tetranitrate

(PETN) waste

1,000 lbs/week

Pentolite waste

50 lbs/week

Composition B waste

150 lbs/week

EBCO has been able to eliminate open burning of three small-scale waste streams: shipments of

explosive-contaminated solvents and rags, and shipments of pyrotechnic explosive configured devices.

Pet. at 2. EBCO is now sending its solvents and rags to off-site treatment, storage, and disposal

facilities. Pyrotechnic materials are also shipped off-site for disposal, and, as a result, the total amount

of wastes to be burned will decrease by 50 lbs/week. Pet. at 4-5, 7.

In the instant petition, EBCO seeks to consolidate the limits for its non-metallic explosive wastes

which include TNT and/or PETN, Composite B, and Pentolite. EBCO asserts that consolidation does

not increase the amount of open burning but instead provides flexibility for EBCO without environmental

or safety concerns, much like the PCB 93-139 variance allowed EBCO more flexibility. EBCO’s

instant petition schedule for open burning is as follows:

Materials to start fires

100 lbs/week

Explosive-contaminated materials

5,000 lbs/week

Non-metallic explosive wastes

1,200 lbs/week

Pet. at 4-5.

In its recommendation, the Agency approves of the schedule above. The Agency notes that it

has studied EBCO’s quarterly reports submitted under the PCB 93-139 variance. See Rec. at Exh. B.

The reports reveal that EBCO has never burned the full amount of wastes allowed by the PCB 93-139

variance.

Expiration Dates

In addition to the instant variance petition, EBCO has also filed an adjusted standard petition.

See docket AS 00-5. EBCO’s adjusted standard petition addresses every aspect of the instant

variance petition except for the burning and flashing of the explosive-contaminated buildings. Pet. at 2.

In the instant petition, EBCO requests that the variance be extended until either: (1) the Board

grants EBCO’s adjusted standard petition (AS 00-5) currently pending before the Board or (2) August

10, 2004, which is five years from the expiration of EBCO’s PCB 93-139 variance. Additionally,

EBCO requests that the Board extend its current variance for open burning of buildings until August 10,

2004. EBCO does not include the buildings as a part of its adjusted standard petition. Pet. at 2, 5, 6.

EBCO states that the non-metallic explosive wastes category includes tritonal (aluminized TNT) which

contains small amounts of aluminum. Res. at 3-4.

The Agency states that there will be a “diminished incentive” for the parties to resolve the

concurrently-filed adjusted standard if EBCO receives another five year variance. Therefore, the

Agency recommends that the Board grant EBCO a one-year variance suggesting that this will give the

parties time to resolve the concurrently-filed adjusted standard petition. Rec. at 5.

The Agency points out that EBCO has provided no schedule for the open burning and flashing

of the six buildings. The Agency recommends that a two-year period will be sufficient to allow for the

burning of the buildings, considering that EBCO has not included the buildings in its adjusted standard

petition. Rec. at 5-6.

In its response, EBCO agrees with the Agency regarding the two-year time period for the

flashing and burning of the six explosive-contaminated buildings. However, EBCO argues that the

Agency’s one-year proposal for the explosive waste and explosive-contaminated waste and equipment

is too short. EBCO claims that it is possible that the concurrently-filed adjusted standard (AS 00-5)

may not be granted within a year. If this were to happen, EBCO would have to file yet another variance

petition. Accordingly, EBCO asks that the Board grant it a two year variance for burning and flashing

all of its wastes including the six buildings Res. at 5-6.

Retroactive Relief

EBCO requests that the Board grant the variance retroactive from August 10, 1999, the day on

which the variance in PCB 93-139 expired. EBCO states that it filed the instant petition on the day that

the variance expired because it wanted to ensure that the open burning provisions in its draft Resource

Conservation and Recovery Act (RCRA) Part B permit were consistent with its variance petition. The

comment period for the permit expired on June 14, 1999. Pet. at 10. The Agency, citing several other

prior variances, recommends that the Board should not grant a retroactive variance but should instead

grant EBCO prospective relief. The Agency acknowledges that the variance in PCB 93-139 was

granted retroactive to the expiration date of the prior variance, but that EBCO’s petition for PCB 93-

139 was filed over a year before the expiration date. On the other hand, the Agency points out that

here EBCO filed the instant petition on August 11, 1999, a day after the PCB 93-139 variance

expiration date. The Agency recognizes EBCO’s reasoning regarding the RCRA Part B permit, but

does not accept that EBCO waited almost two more months to file the instant petition. Rec. at 6-7.

Other Conditions

The Agency is concerned that EBCO has not provided enough information regarding flashing,

namely the quantity of the materials to be flashed, the emissions from flashing, or the frequency of

flashing. Therefore, the Agency recommends that EBCO notify the Agency prior to open burning or

flashing of any buildings or equipment. Rec. at 6.

The Agency proposes that EBCO should place a wire mesh screen over the materials to be

flashed. Rec. at 18. EBCO objects, claiming that the wire mesh screen requirement is neither

practicable nor feasible. EBCO claims that the screen burns away during flashing and therefore serves

no useful purpose. Res. at 5.

One of the conditions in the PCB 93-139 variance states that “Petitioner shall weigh and record

all materials to be burned.” EBCO v. IEPA (September 1, 1994), PCB 93-139, slip op. at 6. The

Agency proposes changing the condition for the instant variance: “Petitioner shall weigh and record the

weight, description, and contaminants contained in all materials to be burned.” Rec. at 16. EBCO

objects, claiming that it is not able to weigh each contaminant in its explosive-contaminated packaging

material. Res. at 3.

For the instant variance, the Agency proposes that “Petitioner shall remove the roofing materials

. . . prior to burning the structures.” Rec. at 17. EBCO claims that this condition is modified from a

prior variance where removal of roofing was specified for certain buildings. Res. at 4; EBCO v. IEPA

(September 1, 1994), PCB 93-139, slip op. at 7. For the instant variance, EBCO says that different

buildings must be flashed prior to demolition and that there is a risk of detonation if EBCO is forced to

remove roofs. In addition, if roof removal is required, workers who go on top of the buildings could be

at risk because several of the buildings are aging and not in good condition. Workers may also be at

risk resulting from sparks during removal. Res. at 4.

COMPLIANCE WITH FEDERAL LAW

In accordance with Section 35 of the Act, the Board may grant variances only where they are

consistent with federal law. 415 ILCS 5/35 (1998). Sections 237.102 and 237.103 of the Board’s

rules are not part of the Illinois State Implementation Plan (SIP) for achieving the National Ambient Air

Quality Standards (NAAQS). The Board’s rules at issue are not required by federal law. Thus, the

Agency acknowledges that granting the variance is consistent with federal law. Rec. at 14.

Furthermore, EBCO stresses that open burning of explosive waste material is allowed by its draft

RCRA Part B permit. EBCO expects that the permit will be adopted without any substantive changes.

Pet. at 8-9.

ENVIRONMENTAL IMPACT

When deciding to grant or deny a variance petition, the Board is required to balance the

petitioner’s hardship in complying with Board regulations against the impact that the requested variance

will have on the environment. Monsanto Co. v. IPCB, 67 Ill. 2d 276, 292, 367 N.E.2d 684, 691

(1977).

EBCO’s facility is in a rural area that is in attainment for the NAAQS for all criteria pollutants.

Rec. at 10. The nearest monitoring station, which is located 20 miles northeast of Wolf Lake in

Carbondale, only measures total suspended particulates (TSP). There have been no exceedences of

TSP in Union County over the past three years. Pet. at 6; Rec. at 10. EBCO also believes that

emissions data from its previous variance petitions shows that the open burning at its facility will not

cause violations of the applicable NAAQS.

Id.

The Agency agrees with this analysis. It also points out

that the pyrotechnic materials (which will no longer be open burned) were its biggest environmental

concern. Pet. at 10.

EBCO states that it will take “sufficient precautionary measures” to minimize the emission of air

contaminants and control the open burning so that it is done safely. Pet. at 7. The Agency states that

the inherent dangerous nature of the materials outweighs the “unquantifiable amount of environmental

harm” from open burning. Rec. at 11.

HARDSHIP

In consideration of a variance, the Board is required, pursuant to Section 35(a) of the Act, to

determine whether the petitioner has presented adequate proof that it would suffer an arbitrary or

unreasonable hardship if required to comply with the Board's regulation at issue. 415 ILCS 5/35(a)

(1998). In order to comply with the Board’s regulations at 35 Ill. Adm. Code 237.102 and 237.103,

EBCO would have to find alternative means to legally dispose of its wastes.

In several of the previous variances granted to EBCO and Trojan Corp., the Board has held

that EBCO and Trojan Corp. should have continually investigated new technology to provide for an

economically feasible and technically reasonable alternative to open burning. EBCO and Trojan Corp.

v. IEPA (August 10, 1989), PCB 88-156 and PCB 88-168, slip op. at 7; EBCO and Trojan Corp. v.

IEPA (August 22, 1991), PCB 90-242, slip. op at 4; EBCO v. IEPA (September 1, 1994), PCB 93-

139, slip op. at 6.

In the instant petition, EBCO claims that it has continued to investigate alternatives to open

burning. EBCO points to the waste streams that it now ships off-site for treatment as an example. Pet.

at 2, 4, 5, 7. However, EBCO claims that, at the present time, no alternatives to open burning exist that

are economically feasible and technically reasonable for its remaining open-burned wastes. Pet. at 2, 7.

EBCO has investigated sending its bulk shipment wastes to off-site facilities, but there are safety risks

associated with large scale transportation that are not inherent for the small quantity waste streams

which EBCO now sends off-site.

EBCO notes that it has also evaluated the possibility of using chemical treatment methods but

found that available technologies would produce a greater volume of hazardous waste that would still

need to be treated, stored, or disposed. Pet. at 8.

EBCO has determined that a new technology known as thermal destruction by controlled

incineration for its bulk wastes is a safe, clean, and efficient alternative to open burning. However, this

method was rejected because, until recently, Illinois had banned construction of new hazardous waste

incinerators. Pet. at 7. Now that the ban has been lifted, the Agency points out that EBCO has not

reevaluated on-site incineration. Rec. at 12. The Agency also notes that EBCO’s instant petition is

silent regarding the long-term feasibility of on-site incineration. The Agency claims that this weighs in

favor of a shorter term for the variance. Rec. at 8.

Recently, EBCO notes that it has not pursued incineration because the explosives industry has

focused on new technologies. Pet. at 7-8. EBCO claims that the existence of new alternatives is a

reason not to build its own on-site incinerator. Pet. at 8. The potentially viable alternatives include

Solvated Electron Technology and Plasma Arc Technology. EBCO claims that the alternatives are not

yet economically feasible or technically reasonable because they are “unknown, unproven, (and) highly

complicated”. Pet. at 8, 9. The Agency admits that the new alternatives may impose an undue hardship

in the short term, but states that EBCO’s instant petition does not provide enough detail on long term

investments in the new alternatives. Rec. at 13.

In general, although the Agency recognizes EBCO’s efforts to investigate technically feasible

alternative methods of disposal other than open burning, the Agency states that EBCO has not provided

enough financial information on those alternatives. Rec. at 12.

EBCO is not aware of any alternative disposal option for the buildings that it wishes to burn.

Pet. at 9. The Agency accepts EBCO’s conclusion here. Rec. at 13-14.

DISCUSSION

Waste Categories

The Board notes that EBCO nearly always exceeded its Pentolite waste limit during the prior

variance, but that it was well under all of the other limits. By combining Pentolite with other non-metallic

explosive wastes into one category, the Board finds that the variance granted herein will more accurately

reflect the amount of the waste being burned.

Expiration Dates

Section 36(b) of the Act states that a “variance may be extended from year to year by

affirmative action of the Board, but only if satisfactory progress has been shown.” 415 ILCS 5/36(b)

(1998). EBCO first filed a petition for a variance from the Board’s open burning rules in 1989, and the

variance was subsequently extended and expanded in scope. The most recent variance extension was

in 1994 for a period of five years. See EBCO v. IEPA (September 1, 1994), PCB 93-139, slip op. at

8. The Board has approved other variance extensions for a period longer than a year. See Village of

North Aurora v. IEPA (April 20, 1995), PCB 95-42; City of Springfield v. IEPA (December 16,

1993), PCB 93-135; Department of the Army v. IEPA (October 1, 1992), PCB 92-107.

In the instant variance, the Board finds EBCO’s request for a two-year variance for both the

flashing and burning of all wastes, including the six buildings, to be compelling. The process for the

adjusted standard could exceed one year if there are extensions of time or other procedural delays. If

the Board only grants a one year variance here, it might be necessary for EBCO to file yet another

variance petition next year.

The Board notes that if it is able to rule on the concurrently-filed adjusted standard (AS 00-5)

within a year of this variance, then there will be no conflict with the provisions in Section 36(b) of the

Act.

Retroactive Relief

Although the Board has granted retroactive relief in other variances, it usually does so only in

special or extraordinary circumstances. J.M. Sweeney Co. v. IEPA (December 19, 1996), PCB 96-

184, slip op. at 7; White Cap, Inc. v. IEPA (November 7, 1996), PCB 96-191, slip op. at 8;

Marathon Oil Co. v. IEPA (May 16, 1996), 95-150, slip op. at 10-11; North Shore Sanitary District

v. IEPA (December 17, 1992), PCB 92-92, slip op. at 4; DMI, Inc. v. IEPA (December 19, 1991),

PCB 90-227, slip op. at 6, 7. The Board usually considers variances effective on the date of the Board

order. If a petitioner wishes a variance to begin on a certain date, then the petition must be filed at least

120 days prior to that date. Generally, the Board has 120 days to consider a variance petition from the

time that it is filed. 415 ILCS 5/38(a) (1998); J.M. Sweeney Co. v. IEPA, PCB 96-184, slip op. at 7

quoting DMI Inc., PCB 90-227, slip op. at 5. The Board adheres to this policy in order to discourage

untimely filed petitions. J.M. Sweeney Co. v. IEPA, PCB 96-184, slip op. at 7; White Cap, Inc. v.

IEPA, PCB 96-191, slip op. at 8; Marathon Oil Co., PCB 95-150, slip op. at 10.

The Supreme Court has held that “the Board can provide relief from the hardship of immediate

compliance and yet retain control over a polluter’s future conduct by granting a temporary variance.”

Monsanto Co., 67 Ill. 2d at 288, 367 N.E.2d at 689. However, a retroactive variance eliminates the

Board’s ability to control the petitioner’s activity during the retroactive period. Marathon Oil Co.,

(PCB 95-150), slip op. at 10.

The Board will not apply retroactive starting dates for variances where the petitioner has filed

late and the delay was the petitioner’s fault.

Marathon Oil Co., PCB 95-150, slip op. at 12. Another

reason for not applying a retroactive starting date is if the petitioner’s hardship is self-imposed as a result

of the petitioner’s inactivity or faulty decision-making. Marathon Oil Co., 95-150, slip op. at 10; DMI

Inc., PCB 90-227, slip op. at 6.

The Board may grant a retroactive variance if the petitioner has diligently sought relief and has

made a good faith effort toward achieving compliance with Board regulations. Marathon Oil Co., PCB

95-150, slip op. at 11-12; Deere & Co. v. IEPA (September 8, 1988), PCB 88-22, slip op. at 4. The

Board has also provided retroactive variances where there was a procedural delay that was not the

petitioner’s fault or was the result of confusion over federal regulations. Marathon Oil Co., PCB 95-

150, slip op. at 11; Allied Signal v. IEPA (November 2, 1989), PCB 88-172, slip op. at 6.

The Board notes that EBCO has diligently sought relief and has made good faith efforts to

achieve compliance with the Board’s regulations. EBCO is claiming that it postponed filing the variance

in order to ensure that the provisions in its draft RCRA Part B permit were consistent with its variance

application. Pet. at 10. The Board has found that seeking related government permits or other

government approval is an unusual circumstance and justifies delaying the filing of a variance petition.

J.M. Sweeney Co. v. IEPA, PCB 96-184, slip op. at 7; White Cap, Inc. v. IEPA, PCB 96-191, slip

op. at 8-9. However, the expiration of EBCO’s RCRA Part B draft permit comment period on June

14, 1999, does not justify EBCO’s inactivity in waiting until August 11, 1999 - the day after the

expiration of the prior variance - to file the instant petition. The Board will not grant a retroactive

variance but will instead grant the variance effective as of the date of this order.

The Board also notes that part of the retroactive relief requested by EBCO in the instant petition

is moot. Currently, EBCO may legally open burn its accumulated drums of explosive hazardous waste

and potentially-explosive contaminated packaging materials. EBCO’s most recent provisional variance

allows such open burning pursuant to the terms of its variance in PCB 93-139 for a period of 45 days -

from October 27, 1999, to December 10, 1999. EBCO v. IEPA (November 4, 1999), PCB 00-78.

Other Conditions

The Board accepts the Agency’s recommendation on notification. EBCO must notify the

Agency prior to open burning or flashing any buildings or equipment.

The Board accepts EBCO’s argument regarding the use of the wire mesh screen for flashing.

The Board finds that the screen would serve no useful purpose and will not require EBCO to use one.

The Board proposes a clarification of the Agency’s weighing and recording condition that would

not require EBCO to weigh each contaminant. The Board will require EBCO to weigh and record its

waste materials to be burned according to the category of the waste, not according to each

contaminant. Those categories are materials to start fires, explosive-contaminated materials, and non-

metallic explosive wastes including tritonal (aluminized TNT).

The Board accepts EBCO’s objection to the Agency’s proposed condition that roofing

materials be removed prior to burning. The Board will only require EBCO to remove the roof of a

building if EBCO determines that such removal is safe.

CONCLUSION

The Board finds that, if the instant variance petition is not granted, EBCO will incur an arbitrary

or unreasonable hardship. There are currently no viable alternatives to open burning of the bulk wastes.

The open burning will not affect the NAAQS, nor will the burning violate other federal or State laws.

The Board will grant EBCO a variance to open burn explosive waste and explosive-contaminated

waste, provided that EBCO continue to investigate alternate methods of treatment, storage, and

disposal of its explosive wastes and potentially explosive-contaminated wastes. The Board also finds

that EBCO is not entitled to a five-year variance, but is instead entitled to a two-year variance pending

outcome of the concurrently-filed adjusted standard, AS 00-5. The Board finds that EBCO has not

presented evidence of special or extraordinary circumstances sufficient to justify a retroactive variance.

The variance will begin on the date of this order.

This order does not relieve EBCO of its responsibility to comply with applicable local

emergency open burning restrictions or local emergency bans.

This constitutes the Board's findings of fact and conclusions of law in this matter.

ORDER

EBCO is hereby granted a variance from 35 Ill. Adm. Code 237.102 and authorization to open

burn explosive waste as permitted by 35 Ill. Adm. Code 237.103, subject to the following conditions:

Duration

This variance shall expire on November 18, 2001, or the effective date of an

adjusted standard for petitioner, whichever occurs first.

Explosive waste and explosive-contaminated waste.

Petitioner shall diligently pursue an alternative to open burning its explosive

waste and explosive-contaminated waste.

Petitioner shall submit to the Agency information pertaining to requirement B-1

as soon as such information becomes available.

At any time during the variance period, the Agency may identify new

alternatives to open burning for petitioner to evaluate for technological feasibility

and economic reasonableness. The evaluation shall be completed and a report

shall be submitted to the Agency in soon as practical after petitioner receives

notice of such new alternative.

Petitioner, upon ascertaining to a reasonable degree of certainty that there exists

an alternative to open burning which is technologically and economically

feasible, shall implement this alternative to dispose of its explosive waste and

explosive-contaminated waste.

Petitioner shall take reasonable measures to minimize the contamination of

materials during manufacturing operations.

Petitioner shall weigh and record each category of waste materials to be

burned. Those categories are materials to start fires, explosive-contaminated

materials, and non-metallic explosive wastes including tritonal (aluminized TNT).

Petitioner shall maintain records with weekly totals, by specific type and weight

of waste burned. A compilation of these records shall be submitted on a

quarterly basis to the Agency. These records shall be available for Agency

inspection at all times when petitioner is in operation.

The report in paragraph g should be addressed to:

Mr. John Justice, Regional Manager

Bureau of Air

Illinois Environmental Protection Agency

2009 Mall Street

Collinsville, IL 62234

Open burning shall take place on calm, clear days during daylight hours on

which wind velocity is greater than two miles per hour but less than ten miles per

hour.

Petitioner shall use cages to burn explosive-contaminated materials so that the

dispersement of ash is minimal. Petitioner shall maintain the cages so that the

design function and efficiency of the cages are not substantially altered from the

cages as built.

Petitioner shall promptly clean up and dispose of any ash after every burn in

accordance with all RCRA requirements.

Petitioner shall use a concrete pad for open burning of K044 and K045 sludges

to prevent residual waste and waste constituents from contacting surface soils.

Petitioner shall comply with all RCRA and Occupational Health and Safety

(OSHA) requirements.

Petitioner shall have fire prevention plans and equipment ready and in place at

the facility prior to the first burn.

Open burning shall at all times be supervised. Petitioner shall train its employees

in the proper procedures to be followed regarding the open burning.

Additionally, training manuals delineating the procedures shall be readily

available to employees and Agency inspectors.

Petitioner shall fence off the entire burn area prior to the first burn.

Petitioner 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.

The above-mentioned notification shall include a telephone number for nearby

residents to call in the event of any complaints.

Any complaints shall be forwarded to the Agency’s Regional Office in

Collinsville within twenty-four hours.

Petitioner shall not burn more than the following:

Materials to start fires

100 lbs/week

Explosive-contaminated materials

5,000 lbs/week

Non-metallic explosive wastes, including

aluminized TNT

1,200 lbs/week

Manufacturing Buildings

Petitioner shall remove the roofing materials prior to burning the structures,

unless petitioner determines that such removal is unsafe.

Petitioner shall remove all explosive waste materials from the buildings prior to

burning the structures.

Petitioner shall only burn one building per day.

Petitioner shall only burn a building on calm, clear days during daylight hours

when the wind velocity is greater than two miles per hour but less than ten miles

per hour.

Petitioner shall promptly clear the site of resultant ash after it has burned each

building.

Petitioner shall have fire prevention plans and equipment ready and in place at

the facility when it burns a building, as described in its August 11, 1999,

variance request to the Board. (Pet. at 7.)

Petitioner shall notify the Agency, the local fire department, and the county

forestry service of the exact date and time when the proposed burning will

occur, at least five business days in advance of when it is intended to occur.

Petitioner shall submit notification pursuant to 40 C.F.R. 61 Subpart M at least

10 working days prior to demolition.

Flashing of Contaminated Equipment

The open burning site shall be limited to the smallest necessary space, including

areas designated for safety reasons.

Petitioner shall limit the amount of clean fuels to that necessary to flash the

equipment of explosives.

Heat-sensitive devices shall be placed in the equipment to be flashed to ensure

temperature control.

Petitioner shall comply with requirements 2-i, 2-k, 2-m, 2-n, 2-o, 2-q, 2-r, and

2-s whenever flashing is conducted.

Petitioner shall notify the Agency of the exact date and time when the proposed

flashing of equipment will occur at least five business days in advance.

IT IS SO ORDERED.

If petitioner chooses to accept this variance, within 45 days after the date of this opinion and

order, petitioner shall execute and forward to:

Deborah J. Williams

Division

of Legal Counsel

Illinois

Environmental Protection Agency

1021 North

Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

a certificate of acceptance and agreement to be bound by all the terms and conditions of the granted

variance. The 45-day period shall be held in abeyance during any period that this matter is appealed.

Failure to execute and forward the certificate within 45 days renders this variance void. The form of the

certificate is as follows:

CERTIFICATION

I (We), _____________________________________________________, having read the

opinion and order of the Illinois Pollution Control Board, in PCB 00-24, dated November 18, 1999,

understand and accept the said opinion and 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 (415 ILCS 5/41 (1998)) provides for the

appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this order.

Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d R. 335; see also

35 Ill. Adm. Code 101.246, Motions for Reconsideration.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above

opinion and order was adopted on the 18th day of November 1999, by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board