ILLINOIS POLLUTION CONTROL BOARD

February

17,

1972

MERLE

K.

BUERKETT

v.

)

#

71—303

ENVIRONMENTAL PROTECTION AGENCY

Mr.

Alfred

B.

LaBarre, Attorney,

for Merle

K.

Buerkett

Messrs.

Larry

R.

Eaton and Wayne Golomb, Assistant Attorneys General,

for

the Environmental Protection Agency

Opinion and Order of the Board

(by Mr.

Currie)

Petitioner Buerkett operates

a landfill at Springfield.

He seeks

a variance

from the Rules

and Regulations

for Refuse

Disposal Sites and Facilities to allow the dumping of acid sludge

from

the recycling

of used motor oil in

an open

pit, without

complying with the covering requirements

of the Rules

and

without permission of the Environmental Protection Agency, whose

consent is required both by the Rules

(Rule

5.08)

and by

an

earlier order of this Board

in an enforcement case involving

this

same landfill

(EPA v.

Clay Products,

Inc.,

#71—41, June

23,

1971)

for

the dumping of liquid or hazardous materials.

The waste sludge

is generated by Sorco Oil Refining Co., which

sought to intervene

as

a party petitioner.

The Agency argued that Mr. Buerkett had no standing to

seek this van

nce because the alleged hardship was Sorco’s and

not his

(see Recommendation).

This argument is mooted by Sorco’s

intervention,

and is refuted by our decision in North Shore

Sanitary District v. EPA,

#

71-343

(Jan.

24,

1971)

.

Hardships

to persons other than the petitioner,

such as to employees or

customers,

are commonly the basis

for granting variances.

The

Agency further contended that the Board lacked jurisdiction over

this petition because of the prior order, which stated that the

Agency was

to decide whether or not such material could be accepted

at the

site

(R.

8).

But the permit procedure prescribed in the

order has been exhausted

(R.

9); we

did not intend to give

the Agency unreviewable discretion

in the matter,

and we could

not legally have done

so since

the statute expressly allows

for variances from orders

of the Board

(Section 35).

The record shows that Sorco purchases used motor oil from

independent contractors who collect it from service stations

by

truck

(R.

71,

122, 136—38).

The used oil

is

a waste product to

the service station operator

(R.

13), which he is anxious

to get

off his hands both to avoid problems with the

fire marshal

(R.

32),

3

—

659

---

and to avoid cluttering up the premises

with

useless

material.

Generally no fee

is charged the station operator for

providing

the pickup service

(R.

139).

Sorco pays 5~per

gallon to

the contractor who collects the

oil

(R.

120),

and then

Sorco reprocesses it into

a saleable

and entirely satisfactory

product

(R.

104)

that

is sold

in competition with virgin motor

oil

(R.

77—78).

Sorco sells

for 21 l/2~per gallon; virgin oil

sells in the same market for 23 3/4~or more including tax

(R.

83-84,

106,

111).

There

are only two oil reprocessors

in

all Illinois

(R.

12,

75),

and Sorco7s contractors collect oil

from over much

of the State

and

even beyond

(R.

138).

Reprocessing entails the use

of an acid, which ends up

as part of an unusable waste sludge that must be disposed of

(R.

79).

The volume of this sludge

is much

less than of the

initial oil collected from service stations~ only 8

of that

collected cannot be reused in one or another form

CR.

77).

The total amount of sludge to be disposed of

in

a normal day

is about

600 gallons

(R.

74).

In

the past Sorco deposited

the sludge in an open pit

at

he Buerkett landfill

site

(R.

49,

79).

The sludge

is quite

difficult

to handle;

it will

eat holes

in workers’

clothes

(R.

60,

129,

153)

and causes extensive damage to earth-moving

equipment

if efforts are made

to bury

and cover it,

(R.

57,

153).

Other materials had

a way of getting

into the old pit

(R.

151),

and ultimately filling that pit with trees

and dirt

caused problems including equipment damage

(R.

57,

152).

Because

of incomplete compaction,

there

is

a question as to the solidity

of

the filled pit

(R.

152).

After covering at another site,

the sludge permeated the surface

and “sterilized several areas”

(R.

158).

The Agency refused permission for open dumping to

continue,

and dumping has stopped pursuant to our earlier order

(R.

50).

The Agency has expended considerable effort in attempting

to help Sorco

find

a more satisfactory solution to its disposal

problem

CR.

155).

At

the Agency’s suggestion,

Mr. Buerkett

mixed

an amount of the sludge with powdered limestone, which

adequately neutralized the acid

and created

a material that

could be handled with ordinary equipment and buried

in

a traditional

landfill

CR,

53—55,

59—60,

68,

156,—57).

The

cost of

this procedure,

Mr.

Buerkett testified, would be from

$100 to

$125 per load of 600 gallons

CR.

53-59,

63).

At one load per

day five

times

a week

(ibid),

this amounts to

a total disposal

cost,

in compliance with the rules~ of $2000

to $2500 per month

(R.

116)

,

as compared with $500 per month for open pit disposal

(R.

65).

Thus the incremental cost of doing

it right would

be no more than $24,000

per year

(R.

85)

for the wastes from

recycling the oil from all of Illinois outside

the Chicago

area.

No objections were raised

to this procedure except money

(R.

63).

3

—

660

---

Sorco contends

that this cost might put

it out of business.

Its normal profit,

it testified,

is about 2~per gallon

(R.

84-85,

R.

121—22).

It fears

that

if it raises

its price the anticipated

l~per gallon to cover the increased cost1 it might

lose some

of

its customers

(R.

118)

,

although

its price would still

be below

that

o

its competitors

(R.

110).

It bases

this prediction

-—an admitted guess

CR.

132)—-on evidence that

the last

time it

raised

its price l~it

lOSt

a number of customers

(R.

87) account-

ing for

20

of

tis market

(R.

106).

The argument

is

that we

should not do anything to risk the

loss of Sorco because

it

performs

a useful service

in recycling what would otherwise be

a

much larger waste disposal problem.

It

is always unfortunate if pollution expenditures

force

anyone providing useful services out of business,

and we

recognize the value of recycling.

But it is not the law that

those who recycle are exempt from the pollution laws;

the

statute makes clear that avoiding undue pollution

is

a cost of

everyone’s doing busi~iess(Section

2(b)).

On this record we

are

not convinced that the cost of proper sludge disposal would be

too much for Sorco.

The evidence that

a price rise

in the past

resulted

in

a market reduction does

not prove

that

a rise under

different circumstances2 would have the

same result,

Under-

selling

a competitor by 10

is

a fairly attractive position.

And we think insufficient consideration has been given

to

the possibility of passing

the increased cost back to

the service

station owner rather than forward to the consumer.

The station

owner has

a waste problem;

the collector renders him~a useful

service for which he should be willing

to pay

a small fee.3

The cost of waste disposal

is

a fair cost of his doing business

too.

There

is nothing unusual about charging people

for disposing

of their wastes.

The possibility that

a charge might induce

a station owner

to dump his oil down the sewer

(R.

20)

we do

not think

is

sufficient justification

for avoiding the

charge.

1.

Sorco first estimated 2~per gallon

(R.

85).

But cross-

examination on the basis of Sorco’s own volume and cost

figures reduced this estimate to

1 1/2~ CR.

113)

,

and

subtraction

of the open-pit cost of about l/2~admittedly

reduced the incremental

cost per gallon to l~ CR.

117—18).

2.

Among other things,

the testimony

is that

the lost customers

were geographically situated so as to reduce

Sorco’s

normal

transportation cost advantage

(R.

107),

3.

It was estimated

that

a station operator would take

5-6

months to fill

a 500—gallon tank

CR.

142)..

At l~a gallon

such

an

operator

would

pay

a pickup

fee

of

ten

to

twelve

dollars per year.

---

There are substantial penalties provided for

such illegal

activities,

and we would

not expect people to risk such penalties,

even

if

they were inclined to violate the

law, to avoid paying

a charge as small as that which would be necessary

to cover the

nominal

cost in this case.

In summary, we find that the dangers, unsightliness, and

possibility

of permanent land damage

(R.

158)

of open pit disposal

of the acid sludge in this case can be avoided by the expenditure

of

an extra $20,000 per year,

that the cost is quite small

and well worth it,

and that there is no reason it should be

an unreasonable burden on Sorco.

We

do

not

by

this decision rule out lagooning of other

liquid wastes, where appropriate, any more than the Agency by

refusing

this permit indicated it

would never issue any.

In

each case the decision turns on the facts.

What we hold today

is that open dumping of the waste

in this case

can be avoided

at reasonable cost.

The variance

is denied.

Mr. Dumelle dissents.

I, Christan Moffett,

Clerk of the Pollution Control Board, certify

that the Board adopted the above Opinion and Order of the Board

this

17th

day of February,

1972 by

a vote of

4-1

3

—

662