STATE
OF
ILLINOIS
POLLUTION
CONTROL
BOARD
HAROLD
L.
SWORDS,
d/h/a
HAROLD
L.
SWORDS
&
CO.
V.
)
#
70—6
ENV
IRONIIENTAL
PROTECT I
ON
AGENCY
)
Opinion
of
the
Board
(by
Mr.
La~~iton):
Petitioner
seeks
a
variation
of
the
relevant
air
pollution
regulations
prohibiting
coon
burning
as
aoplied.
to
his
lumber
mill
operation
in
Peoria.
The
Beard
has
reviewed
the
report
of
the
Hearing
Officer
and
the
transcript
of
the
eroccedinc,
both
of
which
are
incorporated
herein
by
reference.
while
the
request
for
variation
was
filed
prior
to
the
effective
date
of
the
Environmental
Protection
Act,
the
determination
of
this
Board
is
based
u~on the
present
act,
which
by
i t:s
tcrns
crc—
v1c1~s tint
“all
proc~edings
titutcci
for
actions
ta:en
after
the
effective
date
of
this
act,
she?
he
governed
by
this
act’
(Sac.
4~h)
Since
a
rcauest
for
variation
is
crospective,
the
above
quoted
provision
is
appllcahle.
it
is
the
decision
of
the
Board
that
the
variation
be
denied.
Petitioner
scehs
to
be
remitted
to
burn
in
the
ocon
wood
serene,
saw
dust
and
edgincs
resulting
frey
his
saw
mill
operation
so
as
to
eliminate
e:isting
accumulations.
This
process
ailcceclv
would
tate
from
three
to
five
dave,
if
done
continuously,
pro-’
sumebly
during
as.
eight—hour
dcv,
or
alternatively,
could
be
programeed
over
a
longer
period
of
approximately
two
weeks
with
shorter
burning
episodes.
(Rec,
10)
By
aruondeont
to
his
petition,
Petitioner
also
seeks
to
continue
the
open
burning
of
wood
scraps
as
above
described
over
a. uericd
of
one
year
at
the
end
of
which
tine,
Petitioner
would
presumably
cease
operation.
Section
2—1.2
of
the
rules
and
reaulations
of
the
Air
Pollution
Control
board
prohibits
open
burning
‘of
refuse.
Theso
rules
remain
in
force
end
cf~ect
until
sunerseded
by
action
of
the
~
lution
ContrOl
Board.
(Sec.
40c)
,
Noreovor,
open
burning
of
refuse
is
outlawed
by
Section
10
(c)
of
the
Act
itself.
The
standards
for
the
granting
of
a
variation
are
set
fosth
in
Title
IX
of
the
Enu~ronmental
Protection
Act.
The
imperative
proof
needed
for the granting
of
a variation is an affirmative
~.howing
by
the Petitioner that the application of
the
regu-
~tion
sought to be varied “would impose an arbitrary or
~nxeasonable
hardship”
on
Petitioner.
(Section
35).
Peti-
tio~ar
has failed to establish this proof.
~t±tion.er
conducts
a sawmill and lumbermill operation at
3~5
l~est
Farminqton Road, Peoria,
Illinois, which the
~~r~:discloses
to
h~
in an industrial area
with
few
res~ntial
structures in
the vicinity.
Nearby
and
adjacent
~ses
is~iude
a
~acking
plant, an auto salvage operation, and
an
a~pJualt
plant.
The burning site
is
located approximately
l,2~
feet
from
the highway.
No evidence was introduced
that
the
past
operation caused decreased visibility on the
hig~.ay
or
resulted
in
complaints by
the
adjacent residents
or
lando~rers..
Petitioner
is
operating
on leased property
pursuant
to
the
terms
of which lease he
is obligated
to re—
move
all
waste
from
the
premises upon
its termination.
Scme
trade
waste
~roduced
by
Petitioner’s
operation
has
on past
occasion
been
sold
to
paper comoanies.
Petitioner stated
that while
the
trade
waste
could
be
disposed in
a
land
fill
operation
(kec.
12)
,
such
procedure
would
be
“very
expensive.”
Re
also
stated
chet
he
is
2ii~acialiy
incapable
of
ins
lung
icinera~ors
or
other
e~juip~~eeL
foi:
$30,000
to
$40,003
that
would
enaUJ~e
his
diseosaJ.
o~ trade
waste
in
comoliance
with
the
la;~’.
(c.
9)
.
Petitioner!
s
request
for
variance
is
based
upon
the
desire
to
elininate
accumulated
waste
and
con-
tinue
onen
bu~ninq
durinq
the
one
year
phase-out
of
his
busi-
ness.
The
evidence
indicates
that
the
Petitioner’s
financial
posture
is
not
based
solely
upon
his
inability
to
burn
trade
waste,
but.
that
his
termination
of
operation
would
take
place
as stated irrespective
of
the
action
of
this
Board.
On
March
30,
1967,
the
Air
Pollution
Control
Board
granted
Petitioner’
s
previous
variation
request
to
permit
open
burning.
of
sawdust
and
waste
wood
in
the
amount
equal
to
two
truck
loads
a
de:!.
This variation
was
to
expire
on
november
1,
1967
during
which
time Petitioner was to report
on
his
progress
in
providing
alternate methods
of
disoosal
in comoliance
with
Board
reaulatione.
The
variance
was
extended
by
action of
the
Air Pollution
Control
Board
to
July
1,
1969.
The
record dis-
closes
no
reports
having
been
made
during
any
period
of
the
variation
and
the
evidence
shows
no
change
in
operation
in
fact
having
taken
place.
On September
17,
1969,
a
hearing
was
held
on
petitioner’s request
for
a further
extension
of
the
variati.on previously
eranted,
which
request
was
denied
by
the Air Pollution Control
Board
on
September
25,
1969.
1—6
The
present
proceeding was initiated by a letter from Pet±—
tioner
dated
tlay
11,
1970
requesting
a
new
variation
(exhibit I)
—
“to
burn
wood
scrans
for
two,
possibly
three
days
at
the
most..”
After
a
recorr.mendation.of
denial
by
the
Technical
Secretary,,
th~
matter
was
set
for
hearing
by
the
Air
Pollution
Control
~ar~
In
the
hearing
the
request
was
amended
so
as
to
also
permit
aoen
burning
not
to
exceed
a
period
of
one
year
to
enable
ohas~—~at
of Petitioner’s business
(nec.
35).
In arriving at its decision to deny the variation, ith~~oara
is
not
unmindful
of
the
character
of
the
area
in
which
P~titioner’s
operation
is
located,
nor
of
the
absence
of
ex~iressed
c~~laint
by
adjacent
owners.
~cwcver,
that
open
burning
produces
smoke and
other
contaminants
is
not
denied,
and
even
in
the
absence
of
acute
local
effects
may
contribute
to
the
overall
atmospheric
pail..
The
statutory
and
legislative
prohibitions
represent
a
considered
judgment
that,
in
the
absence
of
unusual
hardship,
open
burning
is
not
the
way
to
dispose
of
waste.
Swords
was
denied
a variation
under
the
prior
law
in
1969.
He
has
made
no
showinq
that
his
alleged
hardship
is
any
greater
now
than
it
was
at
that
tir~e,
and
the
present
standard
is
if
anything
more
stringent
than
that
appli-
cable
in
1969.
The
a) lececi
hardship
imoosed
on
Petitioner
in
complying with
the
law
is
eomeletc~’
unpcrsua5;,!e.
Petitioner
has
indicated
that
there
are
n3.ternoti
ye
ardi
:esunahl
v
leqa
I
:neann
of
disoosal
aveiiabl~
to
h~:u,
which
he
has
not
seen
~it
to
~o1o~.
The
qran—
tinq
of
a
variation
presupocsc:~
a
continuing
violation
of
the
law.
A
demonstration
of
economic
ificulty
alone
in
the
face
of
availa-
ble
alternatives
doob
not
ju~t!fy
this
unusual.
relief.
Nor
is
the
imposition
of
an
arbitrary
or
unreasonable
hardship
established
by
~ mere
proponcierance
of
the
evidence.
The
statutory
standards
re-
quire
far
more
then
a
s~mo1e balancing
of
Petitioners
burden
in
comolyinq
with
the
reuul
aticas
aciainst
the
nubile
benefit
in
en—
forccment
of
the
law.
The
evidence
to
justify
the
allowance must
be
substantial
and
convincinc.
A
noiluter
cannot
exoect
the
oeooje
of
the
State
to
underwrite
his
business
ooeration
by
assuming
the
burden
of•
~
ooliution.
There
is
square
precedent
for
these
principles
in
Illinois
pollution
law.
Just
last zprina,
in
c1enyinc~
another
ooen-burñina
variance,
the
late
Air
Pollution
Control.
F~oardreasoned
as
follows:
The
mere desire to save
money
is
not
around
for a
variance;
it is alwa~s
cheaper
to
pollute
than
to
comply,
but
the
statute
and
reculations
reuuire
everyone
to
make
fi.nnncial
s~.crifices
in
order
to
minimize
air
nollution.
In
cases
construing
analogous
variance
provisions
in
zoning
ordinances,
the
courts
have
made
clear
tir:~e
and
again
that
mere
financial
gain
to
the
Petitioner
is
not
enough
to
permit
vio-
lations.
E.q.,
ieiton
v.
Hamilton,
344
Iii.
82,
176
N.E.
333,
338
(1931)
:
“The
mere
fact
that
the
owner
1—7
of a particular parcel of property.
.
.can make more
money out of it if permitted to disregard the ordi-
nance instead of required to comply
with
it,
is neither
a difficulty nor a hardship authorizing the board of
appelas to permit such owner to disregard the ordi-
nance....”...Neal Auto Salvage, Inc. #VR 69—23
(February 25,
1970).
Further,
the
Board
must
take
note
of
the
fact
that
during
the
period
when Petitioner has been operating with the benefit of a
variation, he has totally failed to effectuate any improvement in
his operation or manifest any effort to comply with the relevant
regulations since the original grant of the variation in March of
1967.
The purpose of a variation from the regulations is not to
permit an arbitrary and continuing violation of the law while a
Petitioner seeks to terminate his business, but rather to grant a
period
of time during which the opdrator can take reasonable steps
to bring his operation into compliance with the law.
Nor has
Petitioner complied with the terms oC his original var~anccin m~kin
periodic progress reports on alternate methods of disposal.
This
is, of course, understandable,
since no progress
in this direction
has been made.
The word,
“progross” as used in the statute and in
the
prior
variation
undoubtedly
in9lies
and
means
that
the
polluter
must
nake
efforts
to
abate
the
pollution.
The
statute
does
not
grant
to
the
Board
the
power
to
license
pollution
in
the
State
of
Illinots.
Rather
it
irn;;oc3s
on
the
Board
or4
cbligation
tc
requIre
abate:tcnt
of
~ollut
ion
with
the
vtr4ost
speed.
The Petitioner dsks
this
Board
to
let
him
pollute
for
a
year
or
so;
this
wo cannot do.
The
Petitiqter
has
failed
to satisfy any of the prercquisitcs
for tho relief
he
seeks.
Thtt
his
neighbors
may
also
So
violating
the law in no way sanctions Petitioner’s
violations
If
others
in
Petitioner’s aroc are even worse offenders,
the answer
is vigorous
enforcement
of
the
law
against
the!1,
not
a
license
for
Petitioner
to
continue
polluting.
The
direction
of
thc
State
should
be
to-
ward
total
compliance
with
the
law.
VARIATION
DEfIED.
I Concur
IDissent
I,
Regina
E.
Ryan,
Clerk
of
the
Board,
hereby
an~ify
that
the
Board
adopted
the
above
Opinion
this
2ne~
day
of
SCfl.~$s4
1970
j
L~r4
~e-~tc:~-’
1—8
