ILLINOIS POLLUTION CONTROL BOARD

April

26, 1973

CITY OF FREEPORT,

Petitioner,

vs.

)

PCB 72—487

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

John G. Garrity, Attorney for City of Freeport

Michael A.

Benedetto,

Jr., Assistant Attorney General for the EPA

OPINION

AND

ORDER OF THE BOARD

(by Mr. Henss)

City of Freeport filed a Petition for Variance to allow

the burning of four large piles of logs.

The logs,

located

approximately one mile from Freeport, were placed on private

property by the Illinois Division of Waterways at the City’s

request.

They cannot be burned there without a variance since

they were not grown on that property.

Petitioner desires

to

burn the logs because spring floods might move the logs back

into the River and in position for another log jam thereby

causing possible flooding in Freeport; the site is virtually

inaccessible to trucks; and, the City’s air curtain destructor

would not be practical at the site due to

a high water table.

The logs in question accumulated over

a 14 year period

in a bend of the Pecatonica River downstream from Freeport.

Each of the four piles is about

6’ in height and 100’

long.

City officials requested the log removal by the State Division

of Waterways in the summer of 1972.

The Division of Waterways

brought in

a drag line and caterpillar tractor

,

removed over

90

of the logs at the site and piled them on both sides

of

the River in approximately equal portions.

The logs on the

north side of the River are located on private property adjoined

on one side by the Pecatonica River and on the other by a small

body of water normally 15

—

20 feet in width and 1 foot deep.

Access to the north site

is along a dirt road approximately

1

mile in length and through the shallow body of water.

7

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629

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The logs piled on the south side of the River are also on

private property about 3/4 of

a mile from the nearest residence

or road.

Access to the south side

is through

a wooded area

along

a route previously used by the Division of Waterways to

transport their removal equipment.

An Agency investigator estimated the quant.ity of logs

to be about 2500 tons.

This figure was used in conjunction

with standard emission factors to calculate the following

estimated emissions:

Particulates

42,500 lbs.

Carbon Monoxide

125,000 lbs.

Hydrocarbons

10,000

lbs.

Nitrogen Oxides

5,000 lbs.

TOTAL

182,500 lbs.

However, Mr. Robert Boeke, Freeport municipal employee who

operates the City’s air curtain destructor, felt that the

Agency figure of 2500 tons was under-estimated and stated

“I think it will go way over that”

(R.

10).

Mr. Boeke estimated

that the entire quantity of logs could be disposed of in

2 or 3

weeks by burning

8 hours per day,

5 days per week

(R.

13).

Auxiliary fuels such as dry kindling or diesel fuel would be

required according to Boeke

(R.

14).

The Environmental Protection Agencyh~srecommended denial

of this variance.

One of the Agency’s arguments relates to the

definition of trade waste as contained in our Open Burning

Regulations.

It is the Agency’s contention that the logs are

trade waste resulting from Freeport’s “governmental activity”

and that the burning of such is strictly prohibited by Regulation.

While the logs unquestionably are landscape waste, we reject

the contention that they represent trade waste.

Petitioner surely

did not generate them as

a result of prosecution of its normal

governmental functions.

The City was not engaged in any activity

whereby these logs were a waste material.

Our previous decisions

should have made it abundantly clear that the Board does not

consider landscape waste accumulated on government property to

be trade waste

(City of Galena vs. EPA, PCB 72-122; Sterling Park

District vs. EPA, PCB 72-409;

and Pekin Lake Conservation Area

vs. EPA, PCB 72-420).

The Agency also argues that Freeport’s obligation is moral

in nature rather than legal thereby leaving Freeport with no

standing to sue for variance.

The contention is that the City

did not pay for the use of the private land on which the logs

were deposited and that no formal contract was signed stating

that the logs would be disposed of by burning or any other method.

7

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630

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However, Mayor McLeRoy testified that the verbal negotiations

called for the disposal of the logs by burning and he was in-

formed by someone at the Agency that he could burn the logs

without a permit.

We feel that Freeport’s responsibility for

disposal of the logs is sufficiently clear and the City has

standing to sue for the variance.

Use of the City’s air curtaindestructor was considered

but rejected by both the Mayor and

Mr.

Boeke.

The evidence

clearly shows that a high water table at the north side

(an

island) would prevent the use of the pit required for proper

burning with an air curtain destructor

(R.

19,

34).

Burial

of the logs was rejected for similar reasons.

Agency investigator, Joseph Mall, testified that uncut

timber located about 50 yards from the stacked logs would

represent a potential fire hazard

CR.

70).

We note in

Respondent’s exhibit #3, page

7, that Mayor McLeRoy informed

the Agency investigator that at least one man would be present

at the site during the proposed burning and normal fire pre-

vention techniques would be employed.

In addition,

the Mayor

is quoted as saying that although the fire department would

not be present it could respond to any emergency in

a matter of

minutes.

Neither of the two landowners on whose property the logs

had been piled had any objection to the burning,

according to

the Mayor

CR.

39).

Three persons residing in the probable

downwind direction from the burning piles also expressed no

opposition to the burning.

It was the general consensus of

these persons that whatever smoke resulted would be preferred

over the flooding problems which exist in the area.

The Freeport City Engineer estimated it would cost $22,500

for removal of logs to the present air curtain destructor

site.

Mayor McLeRoy thought the cost would be much higher.

The

Freeport budget does not currently have an appropriation for

such activities

(R.

42).

The Agency contends that such

a cost

does not constitute unreasonable and arbitrary hardship.

The south site is more accessible and would lend itself to

proper disposal utilizing the air curtain destructor,

The City

intended to have a bulldozer at the site in the event we

granted variance for open burning

(R.

10).

We do not think

the temporary relocation of the portable air curtain destructor

at the site would impose an unreasonable hardship,

in view of

the fact that the operator and a bulldozer were to be at the

site if open burning were to occur.

Agency photographs and

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631

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testimony convince us that the logs on the south site would

be less susceptible to flooding.

We believe the evidence is sufficient

to grant Freeport

a variance to burn part of the logs without an air curtain

destructor.

The logs on the north site can not be disposed

of by use of an air curtain destructor because of the high

water table and relative inaccessability.

To order their

removal and relocation for burning at the City’s present air

curtain destructor site would be an unreasonable hardship.

We will allow the variance for open burning in that area

which will not accomodate

an air curtain destructor and deny

the variance for the south site where an air curtain destructor

may be used.

ORDER

It is

the Order of this Board that:

1.

City of Freeport is granted variance from Rule

502(a), Part V, Chapter

2,

of the Air Pollution

Control Regulations until September

1,

1973 only

for burning of logs presently located on the

“north site”,

as described in this Opinion.

Additional combustible materials may not be

added to any fire at this site after

3 p.m., but

due to nature of the logs,

fires need not be

extinguished after

3 p.m.

2.

Petitioner may burn the

logs on the “south

site” only by proper use of an air curtain destructor

in accordance with standard procedures.

3.

Petitioner shall notify the Environmental Protection

Agency five

(5)

days prior to commencement of any

burning in order to allow for Agency observation.

4.

All residue from burning shall be buried to a

sufficient depth to prevent its entrance into any

stream.

Burial shall be completed within two

(2)

days of completion of burning at any site.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Opinion and Order was adopted

this

~~‘~day

of April,

1973 by

a vote of

3

to

0

1

—