ILLINOIS POLLUTION CONTROL BOARD

August 18, 1977

CANNON CONSTRUCTION COMPANY,

Petitioner,

V.

)

PCB 77-57

ENVIRONMENTAL PROTECTION AGENCY,

)

Respondent.

OPINION AND ORDER OF THE BOARD (by Dr. Satchell):

A petit~ionfor variance from Sections 21(b), 21(c), and

21(e) of the Environmental Protection Act (Act) was filed with

the Board on February 22, 1977. The Environmental Protection

Agency (Agency) filed a recommendation of denial of the vari-

ance on March 24, 1977. Subsequently a hearing was held on

April 29, 1977 at which time a stipulation and proposed settle-

ment was submitted for Board acceptance. The Board does note

that a stipulation is inappropriate

in

a variance proceeding.

There are no procedural provisions

for disposition in this

manner.

In

this instance the Board will accept this stipula-

tion as an Agency recommendation.

The variance request was to allow Petitioner to continue

to operate its refuse disposal site located northeast of

Quincy, Illinois, without first

obtaining

a permit from the

Agency. The site is located in Section 23, Township

3.

South,

Range 8 West of the Fourth Principal Meridian in Adams County,

Illinois. Petitioner’s business has been in operation for

about two years (Pet. 2). The Agency

first informed petitioner

of the need for a permit on November

3, 1976 fRee,

2). Accord-

ing to the agreement submitted at the hearing Petitioner asks

for a variance only through August 31, 1977 during which period

Petitioner will be submitting an application for a permit. The

contaminants disposed of at the site include brick,

lumber,

concrete and non-salvageable

demolition waste, estimated at

500 ton/year (Pet. 1).

The stipi4ation provides additional facts, Petitionerts

business is a sole proprietorship doing construction and

demolition in west central Illinois and northeast Missouri.

The majority of its construction and demolition business is

done pursuant to bids. Jobs are

scheduled an average of six

months after letting contracts. The majority of the profitable

work is done during the spring and

summer months, the period

for which the variance is sought. Petitioner employs three

people. Petitioner~sdemolition activity

often is

a predicate

to construction

or

urban renewal activity which creates or

perpetuates jobs in the Quincy area. The Quincy

unemployment

rate is two or three percent higher than the statewide average

in Illinois.

---

Petitioner did contact more than one engineering firm

in January, 1977 and ultimately engaged

one of

the

firms;

however, the severe winter weather in

west central Illinois

made scheduling of outdoor enqineerinq support activity

virtually

impossible.

The local rate for public disnosal is

$15/load. This

is substantially

greater than the

per

load cost of Petitioner

dumping at his own

site.

ifl

addition

~ of Petitioner~s

costs relative to

the landfill site continue (i.e.

bulldozer

maintenance,

land costs, etc.) irresuective

of the inactive

status of the site. The stiptiation provides that with a

capitalization of $30,000 and land contracts outstanding on

all

its property, Petitioner would be unable to meet its

obligations as they come due if it is not allowed to do

business

in the peak seasons if Petitioner is obliged

to

perform on contracts hid six to nine months ago on the basis

of anticipated availability of the landfill, Petitioner will

not be able to perform them at a profit,

Petitioner claims numerous arbitrary and unreasonable

hardships including but not limited to:

I. Inability to bid

jobs knowing the

cost of disposal.

2.

Possibility of no work through peak season and

consequent possible foreclosure of land

contracts.

3. Loss to

community of demolition services preliminary

to public

works and urban renewal projects,

4. Possible unprofitable performance on jobs bid before

closure of site to avoid enforcement action.

5.

Paying for ownership of landfill site and attendant

equipment, yet having to pay for outside disposal.

6. Possible layoffs of innocent third parties from

employment with Petitioner and from employment depen-

dent upon Petitioner~s ability to

perform contracts

already let.

7. Being penalized

for

a long and severe winter which

delayed engineering support wor~con his permit

application.

The Agency takes no position as to whether each and every-

one can be classified as

arbitrary and

unreasonable; however,

the Agency agrees that the

total effect

would be an unreasonable

hardship on Petitioner.

---

A

preliminary hydrcge~1c~ic ~vaTha ;ior of the proposed

site was made by the if~n~is St~e Oeologf cal Survey~ This

report was based or snfo~r~tfcr

t~ered by tte Survey for the

Quincy/Adams County

rf.~.

rot

~.

~rsite

in’~estigation.

An

excerpt

from that :eocr~

jQ

nc1~fc’~

~-

Stfp~Iation (Stip.

6, 7). Based on

t~’is ren~:t tt~ pa

t

e~ac’uee ~hat the poten-

tial for water poi~ticn ~s ~rnrr~P

FoLLowing prope~ operat-

ing

procedures ~nc~d~ ~c

~C

i~te

~cce~tance

at the

site

of only cu

ra~Ly

JmV:

~i ~icr

~es t.~l furtoer minimize

the

possibility or ~1O)t~C.

e

~~1ion

at-ring the

term of the varia~

~.

~e ~

c~ ~rart1ng

the

variance

from pe~ni~~e( ~

~z rat tug ~st 3, 1977 with

several

conditio~s .~Jrri~~ uP:

ri~g ~ere woe or offer of

proof

made concerning thu rde~~s:n or Pes~ondenc~sExhibit

A.

The Board will aLf~r. ~

v

c~Tfice ~s rnl1~e

Two citezen wiro~ssescn~n ~o ~he site, These objec-

tions were direcie ~ ~ ~

: Y ~tecr’oof maw landfrli in

the area an~ were co~uer~r~

:~~e ~ture

‘~io1etions or

pollution.

None ot t~e ~e

c euse~ on octual tnow—’

ledge that the S~tt.

“ma ma

..

.r

.marerly or Piat it was

an actual source of po~t

~.

~pprecrares

the con-

cern

of these citizens mat aima~ mao~e~ceof ~oliuti~n or

a

threat thereof the Poaud ~LrcP. ~

?~tL~ioner has shown

adequate hards~

±0

-ma

~

elmer has

shown good fairr bu~ was

sraiy

severe

winter.

The varrance

~-

~

ma a

‘-jCct to ~he :\geney~s

suggested conditions

This opinion o~ tibmane

t~ma

e

si~e:ngs of fact

and

conclusions

mac

a en ti s

Cannon Co~~smauc~maCo:i’~s ma mama ~ranteo a variance

from Rule.

202(b) ~ c: ~Pe

~co

‘

~sste

Pegulations and

Section 21(e)

of tce Pmaimarn

.

-~

;ucticn lot ;arough

August

31, 197 srb:eot ro :hu t

cmae-’ rdriols

1.

Responde.~ ‘~r~ aLcema

s ‘bmi b to mae igency a

proper and cc uc etc

macma

~eicu

for

an

onerating

permima prier ‘:c -one

~,

I

a~-5

i.

may case will

file an

~ro~-r~

~ee

IrrO Pm: ‘i~.h the

Environmontal

oteaY

.~

may

on ma before July 1,

1977.

In

~e “ma :nco or ama.

falima’ or the issuance

of a marmi_ ma~ tma Irma.

.‘:

lie

Ecal nay revoke the

Variance oaf macer cimas~--e w maIn ematv days~

2.

Provide

Imaul-ise

t~r:

Patecicrer

comply weth all

requiremeat~ of t:1c E~

a

rormonLa Protection Act

and Cnamter

~‘

of tre Boardl RegulatIons as regards

the geneia~ ~ipeeatron

me Jondri~is

---

—4—

3. Respondent will not accept

wastes of any

kind at

the

site from any person or company other than Cannon

Construction Company.

4. In the event the permit

applied

for on or before

July 1, 1977

is denied by the

Environmental Protection

Agency, Petitioner shall

properly close the subject

site

within sixty days of receipt of

the

denial,

pro-

vided, however, that if a permit denial appeal is

taken to this Board and

is unsuccessful, closure is

to be thirty days

after receipt of

the Board~sOrder

by Registered Mail,

The request’ for variance from

Sections 21(b) and

21(c)

of the

Act is not necessary and is dismissed.

IT IS SO

ORDERED.

Mr. Jacob D. Dumelle

dissented.

I, Christan L.

Moffett,

Clerk

of the

Illinois Pollution

Control Board, hereby certify the

above

Opinion and Order were

ad~pted

onthe

Jj~~

day

of

~

Christan L. off

ler

Illinois