ILLINOIS POLLUTION CONTROL BOARD
May 29, 1975
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
vs.
)
PCB 74—437
CITY OF PLANO,
Respondent.
RICHARD COSBY, Assistant Attorney General for the Agency
PETER L. KRENTZ, Attorney for Respondent
OPINION AND ORDER OF THE BOARD (by Mr. Henss):
The EPA filed its Complaint alleging that the City of
Piano (population 4,700) burned large quantities of landscape
waste on or about July 16, 1974. This burning allegedly
took place without an Agency permit in violation of Rule 502
of the Air Pollution Control Regulations and Section 9(c) of
the Environmental Protection Act. A public hearing on this
matter was conducted on February 14, 1975.
Almost four months prior to the alleged open burning,
Agency Engineer Karl Franson met with Ralph Whitecotton, Mayor
of Piano, and Gerald Canham, Superintendent of Streets and
Alleys to discuss the City’s landscape waste disposal problems.
During the visit, Franson discussed the use of an air curtain
destructor, landfiiling and chipping as alternatives available
to the City. He also discussed requirements for obtaining a
variance to burn the landscape waste. Franson followed up
this meeting by writing the Mayor a letter on March 25, 1974
in which he suggested the City use a nearby landfill to dispose
of the landscape waste (EPA Exhibit 2).
Piano submitted its first Petition for Variance in April
1974. The Board found this petition to be inadequate and ordered
Piano to submit information sufficient to cure the inadequacies.
Although Piano did submit additional information, the Petition
was still deemed inadequate and was eventually dismissed without
pr~judice. A second Petition for Variance was submitted on
June 28, 1974. This Petition was also found to be inadequate
and was dismissed by the Board on September 27, 1974.
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Another Agency Engineer, Eric Chance, visited the City
on July 16, 1974. Chance testified that the purpose of his
visit was to discuss the City’s Second~Variance Petition
and the alternatives of using an air curtain destructor,
chipping and landfilling. During this visit Chance was in-
formed that the City had already burned landscape waste
accumulated as a result of a storm which passed through the
City on June 20, 1974.
Chance then proceeded to the site where Plano had been
storing landscape waste. At the site he observed burning
piles of landscape waste and areas where burning had previously
been conducted (R. 15). Photographs taken by Chance corroborate
his testimony (EPA Exhibits 4 and 5). Chance did not see any
city employees lighting fires at the burning site on this date. (R. 23)
Mayor Whitecotton testified that he had met with Franson
on March 22, 1974 and that Franson had warned him that the City
might be in violation if it burned landscape waste at this site.
As a result of this meeting, the Mayor told Superintendent
Canham to instruct his employees not to burn any of the accumu-
lated landscape waste. The record indicates that this directive
was followed until shortly after the June 20, 1974 storm.
According to Mayor Whitecotton, the storm felled trees
which blocked 30 of the City’s streets for at least 24 hours.
Some streets were blocked for up to 3 days. These blockages
created dangerous situations for vehicular traffic and for
children and pedestrians according to the Mayor. Clean-up
crews spent almost one month cleaning up the storm created
debris which was hauled to City owned property adjacent to the
municipal sewage treatment plant. The City was declared a
disaster area and received financial assistance from the U. S.
Government under the Federal Disaster Relief Act.
After the storm debris had been hauled to the landscape
waste storage site, the Mayor rescinded his prior order and
instructed Canharn to burn the material. Canham complied with
the Mayor’s instructions by burning most of the storm related
debris. Burning of the landscape waste may have taken as long
as a week to complete (R. 40). Neither the Mayor nor Canham
received any citizen complaints about the burning. The record
shows that some nearby citizens were not affected by the smoke.
At the conclusion of the Agency’s case, Piano moved for
dismissal of the complaint on grounds that the Agency had failed
to show that any injury had been sustained as a result of the
burning. Citing Lonza vs. IPCB, 315 N.E. 2d 652 Piano argued
that the Agency is requireci to prove both a violation of the
Regulations and a resulting injury and further, that such
injury unreasonably interfered with the enjoyment of life and
property.
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In the instant case Plano is charged with an open bui ng
violation. Section 9(c) of the Act prohibits the open bui ~g
of refuse except where permitted by Board Regulations. P~
502 of the Air Regulations prohibit~ open burning unless
authorized by other parts of the Regulation. It is import ~it
to note that Piano was listed as a disaster area and received
over $3700 in clean—up funds pursuant to the provisions of the
U. S. Disaster Relief Act of 1970 (P.L. 91—606) Having
qualified as a disaster area, Piano was eligible for speci~
relief under Rule 504(a) (6) of the Illinois Air Pollution
Control Regulations. ThatRule was adopted by the Board on
September 13, 1973 to provide for such situations as Plano
faced in June 1974. Under the Rule the Environmental Prot~ction
Agency may grant permits for open burning, in a disaster area,
of clean wood building debris, landscape waste and agricultural
waste caused by the disaster.
During testimony on this Rule in 1973 the Agency stated
that an application for a disaster burning permit would receive
priority consideration and that action on such an applicat~cn
would be taken within one day. The City of Plano did not ap~ly
for such a permit, apparently being unaware of the Rule. If
the City of Plano had applied for such a permit under Rule 504
(a) (6) of the Illinois Air Pollution Control Regulations and if
such a permit had been issued then the open burning which was
conducted on July 16, 1974 would have been in compliance with
the law. Since the open burning was conducted without the
permit we must find that there was a technical violation of
both Section 9(c) ofthe Act and Rule 502 of the Regulations.
In making our decision we are required to “take into
consideration all the facts and circumstances bearing upon the
reasonableness of the emissions.. .involved, including, but not
limited to: 1) the character and degree of injury to or
interference with the protection of the health, general welfare
and physical property of the people; 2) the social and economic
value of the pollution source; 3) the suitability or unsuita-
bility of the pollution source to the area in which it is
located including the question of priority of location in the
area involved; and 4) the technical practicability and economic
reasonableness of reducing or eliminating the emissions...
resulting from such pollution source.” Section 33(c) Environ-
mental Protection Act
When the Board decided in 1973 to provide a method for the
open burning of wastes generated in a disaster, it did so in
consideration of the health impact from letting such waste
accumulate and the economic impact upon a community in disposing
of such waste. There is no evidence that the burning in this
case interfered with the health, general welfare and physical
property of the people.
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The Illinois Supreme Court, in Southern Illinois Asphalt
Company vs. Pollution Control Board (Maxch 1975), held that
the Board does not have the authority to impose a monetary
penalty for punitive purposes, and the imposition of a monetary
penalty will not be sustained unless it will aid in the en-
forcement of the Act. Civil penalties were set aside when it
appeared that the failure to obtain permit was inadvertent, that
Respondent was not dilatory or recalcitrant and had come into
compliance prior to the time the EPA commenced its prosecution.
It appears to us that Piano’s failure to obtain permit
was through inadvertence. We do not believe that Piano was
recalcitrant. Under all of the circumstances we find that
there is no justification for the imposition of a monetary
penalty against the City of Plano.
It is the finding of the Board that Respondent has been
guilty of a violation of Section 9(c) of the Environmental Pro-
tection Act and Rule 502 of the Air Pollution Control Regulations.
The Board shall order Respondent to cease and desist from such
violations but no monetary penalty shall be imposed.
This Opinion constitutes the findings of fact and conclusions
of law of the Illinois Pollution Control Board.
ORDER
It is the Order of the Pollution Control Board that the
City of Plano shall cease and desist from further violations
of Section 9(c) of the Environmental Protection Act and Rule
502 of the Air Pollution Control Regulations.
I, Christan L. .Moffett, Clerk of the Illinois Pollution Control
Board, hereby certify the above Opinion and Ord r were adopted on
the _________day of May, 1975 by a vote of
____________
______
Christan L. Mo~4~~’,Clerk
Illinois Pollutt~ Control Board
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