ILLINOIS POLLUTION CONTROL BOARD
    October 6, 1994
    WASTE MANAGEMENT OF
    )
    ILLINOIS, INC.,
    Petitioner,
    )
    v.
    )
    PCB 94—212
    (Variance)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    OPINION AND ORDER OF THE BOARD (by C.A. Manning):
    On August 5, 1994, Waste Management of Illinois, Inc. (WMII)
    filed a petition for a six-month variance from the Illinois
    Pollution Control Board’s (Board) requirements that WMII file a
    permit application demonstrating compliance with the operating
    requirements of 35 Iii. Adm. Code. 814 by September 18, 1994. On
    August 23, 1994, the Illinois Environmental Protection Agency
    (Agency) filed its recommendation that the variance be granted.
    On September 13, 1994, the City of Geneva filed a petition to
    intervene, and additionally filed a motion to incorporate the
    record in PCB 94-58, City of Geneva v. Kane County et al. WHII
    filed its response on September 23, 1994 and on October 3, 1994,
    the City of Geneva filed a motion for leave to file a reply to
    WNII’s response along with the reply.
    No hearing in this matter has been held, nor has the Board
    received a request for a hearing or an objection to our granting
    the variance pursuant to 35 111. Adm. Code 104.141. For reasons
    more fully set forth below, we grant the six—month variance as
    requested by WMII and deny both the City of Geneva’s petition for
    intervention and the motion to incorporate the record of PCB 94—
    58. We will however, allow the City’s motion for leave to file a
    reply.
    PROCEDURAL MATTERS AND BACKGROUND
    Our review of the City of Geneva’s petition for intervention
    is governed by our procedural rule standard found in 35 Ill. Adm.
    Code 103.142. The City may intervene if it can show either that
    the City is so situated that it may be adversely affected by a
    final order of the Board, or that the City’s claim or defense
    involves a common question of law for fact with the instant
    variance proceeding.
    In this proceeding, WNII is seeking a six—month variance
    from the permit application filing requirement of 35 Ill. Adm.
    Code 814.104(c). Section 814.104 requires owners or operators of

    2
    Subpart “C” facilities which are existing units accepting
    chemical and putrescible wastes that will remain open for more
    than seven years beyond September 18, 1990, and are permitted
    pursuant to Section 21(d) of the Environmental Protection Act
    (415 ILCS 5/21(d), to file an application for significant
    modification of existing municipal solid waste landfill units.
    Section 814.104(c) requires that the application be filed within
    48 months of the September 1990 effective date of Part 814, or by
    September 18, 1994.
    As the operator, WMII is required under this regulatory
    provision to submit a permit application for the existing portion
    of Settler’s Hill Recycling and Disposal Facility in Kane County,
    Illinois (Settler’s Hill). Having received site location
    suitability approval from Kane County for an expansion of
    Settler’s Hill Landfill, which the Board recently affirmed in
    City of Geneva v. Kane County, at al. (July 21, 1994) PCB 94—58,
    WMII is additionally required to file an operating permit
    application regarding the approved expansion. In order to avoid
    undertaking duplicative efforts, WNII is seeking the instant six—
    month variance.
    Geneva does not object to the Board’s granting a variance;
    instead, Geneva seeks to be an intervenor in order to argue that
    the time requested by WHII is too short. Regarding the issue of
    common question of law or fact, the City argues that it meets
    this part of the intervention standard because Geneva allegedly
    has jurisdiction over the siting of Settler’s Hill Landfill.’ We
    find there is no common question of law or fact between the
    City’s claim and this variance proceeding. Geneva is essentially
    seeking to obtain a declaratory judgment from the Board that WMII
    management must file an application for local siting approval
    from the City of Geneva. Whether WMII will receive an operating
    permit from the Agency without having sought and been granted
    local siting approval from the City of Geneva is still an open
    question. We declined to make such a determination on July 21,
    1994 in City of Geneva v. Kane County, at al., PCB 94-58. We are
    declining again today to make that determination with regard to
    the City’s motion for reconsideration of our final decision in
    1The issue of the City’s concurrent jurisdiction was recently addressed
    in City of Geneva v. Kane County, at al. (July 21, 1994) PCB 94—58, wherein
    we upheld Kane County’s siting approval, and additionally found that we had no
    authority at this stage of the proceedings to require WNII to seek site
    location suitability approval from Geneva, despite the City’s claim that it
    shares concurrent jurisdiction with Kane County. We found that pursuant to
    Section 39(c), it was within the initial jurisdiction of the Agency, rather
    than the Board’s, to determine whether WMII had obtained all the necessary
    local siting authority approval prior to submitting an operating permit
    application.

    3
    PCB 94—58, and we decline to make that determination in this
    context. This variance proceeding is not the proper forum to
    determine Geneva’s jurisdiction over the local siting of a
    landfill expansion. The sole issue pending in this matter is
    whether we will grant WMII’s request for additional time to
    satisfy the Board’s regulatory permit requirements, a request to
    which Geneva does not object.
    Geneva also claims it will be adversely affected by a final
    decision of the Board if we merely granted a variance for a six—
    month period because there would be inadequate time for WMII to
    seek site location suitability approval from the City of Geneva
    prior to WMII filing its permit application with the Agency.
    Geneva believes the local siting process would take more than a
    year. We find that Geneva is not so situated to be adversely
    affected by a final order of this Board. Geneva has not
    demonstrated any harm resulting from our granting a six-month
    variance. In the event that WHII should submit a local siting
    approval application to the City of Geneva, it is WMII who would
    be harmed by that process not being completed prior to the
    expiration of the six—month extension, and not Geneva. If, for
    some reason, WMII is in need of additional time in which to file
    a permit application, WMII can seek another variance upon a
    proper showing. (35 Ill. Adm. Code 104.123.) For these reasons,
    we find that the City of Geneva has not met the standard for
    granting intervention and deny both the City of Geneva’s petition
    for intervention and the motion to incorporate the record of PCB
    94—58
    ~2
    STATUTORY FRAMEWORK
    With regard to the variance proceeding, the Board’s
    responsibility in this matter arises from the Environmental
    Protection Act (“Act”). (415 ILCS 5/1 et seq. (1992).) The Board
    is charged with the responsibility of granting variances from
    Board regulations whenever it is found that compliance with the
    regulations would impose an arbitrary or unreasonable hardship
    upon the petitioner. (415 ILCS 5/35(a).) The Agency is required
    to appear in hearings on variance petitions. (415 ILCS 5/4(f).)
    The Agency is also charged, among other things, with the
    responsibility of investigating each variance petition and making
    a recommendation to the Board as to the disposition of the
    petition. (415 ILCS 5/37(a).)
    In determining whether any variance is to be granted, the
    2At the pctober 6, 1994 meeting of the Board, a separate vote was taken
    on the city of Geneva’s petition for intervention. The vote was 3 to 3;
    therefore, the petition is deemed denied for failing to receive the majority
    vote of the Board. However, the three members who would have granted
    intervention concur in the grant of this variance.

    4
    Act requires the Board to determine whether a petitioner has
    presented adequate proof that immediate compliance with the Board
    regulation at issue would pose an arbitrary or unreasonable
    hardship. (415 ILCS 5/35(a) (1992).) Furthermore, the burden is
    on petitioner to show that its claimed hardship outweighs the
    public interest in attaining compliance with regulations designed
    to protect the public. (Willowbrook Motel v. Pollution Control
    Board (1st Dist. 1977), 135 Ill.App.3d 343, 481 N.E.2d 1032.)
    Only with such showing can the claimed hardship rise to the level
    of arbitrary or unreasonable hardship. (We Shred It. Inc. v.
    Illinois Environmental Protection Agency (November 18, 1993) PCB
    92—180 at 3.)
    A further feature of a variance is that it is, by its
    nature, a temporary reprieve from compliance with the Board’s
    regulations, and compliance is to be sought regardless of the
    hardship which the task of eventual compliance presents an
    individual polluter. (Monsanto Co. v. Pollution Control Board
    (1977), 67 Ill.2d 276, 367 N.E.2d 684.) Accordingly, except in
    certain special circumstances, a variance petitioner is required
    as a condition to the grant of a variance, to commit to a plan
    which is reasonably calculated to achieve compliance within the
    term of the variance.
    HARDSHIP
    Under Section 814.104(c), WMII is required to file an
    application for significant modification by September 18, 1994.
    Upon completion of the siting process for the proposed expansion,
    WHII is required to re—file its application for significant
    modification, incorporating the changes resulting from the
    expansion. WNII seeks a six—month variance from the September
    18, 1994 filing deadline in order to avoid filing a piecemeal
    application, and duplicative efforts.
    Each owner or operator must file an application for a
    significant modification for existing units demonstrating
    compliance with current and new Illinois Solid Waste Regulations
    by September 18, 1994. (~g 35 Ill. Adm. Code Section 814.104(b)
    and (c) and Section 814.302.) As it exists now, Settler’s Hill
    Landfill is approximately 291 acres and is currently designed and
    permitted to accept municipal solid waste, demolition and
    construction wastes and special waste. It accepts between 3000
    and 4000 gate cubic yards of waste per day. From April 1, 1993
    through March 31, 1994, Settler’s Hill accepted 1,044,218 cubic
    yards of waste. The landfill employs 20 people and has an annual
    payroll of $890,000.
    Owner or operator must also demonstrate that new landfills,
    in this case the expansion approved by the Kane County Board,
    will be in compliance with Subpart C of Section 811. According
    to the petitioner, this demonstration will vary significantly

    5
    from an application filed solely for an existing landfill. WNII
    asserts that the variance would also avoid wasting the Agency’s
    resources and time in needlessly reviewing a second application
    that would soon become obsolete. The Agency acknowledges that
    requiring petitioner to prepare and the Agency to review an
    unnecessary second application would needlessly waste the time
    and resources of both parties. (Agency Rec. at 3.)
    As discussed above, WNII has sought both a horizontal and
    vertical expansion of the landfill, and reconfiguration of the
    existing landfill area, which the Kane County Board has already
    approved. The expansion design will provide a maximum capacity
    of 5,500,000 additional compacted cubic yards of waste. However,
    prior to filing the permit application for expansion with the
    Agency, WMII must negotiate a new Operating Agreement with Kane
    County. It is the need to renegotiate the Operating Agreement,
    and WMII’s desire to avoid piecemeal filings, which gives rise to
    WMII’s request for an additional six months in which to file the
    application for significant modification of an existing municipal
    solid waste landfill.
    COMPLIANCE WITH OTHER REGULATIONS; ENVIRONMENTAL IMPACT
    Petitioner asserts that it is in compliance with the
    existing Resource Conservation and Recovery Act Subtitle D
    requirements (Pet. at 4) and is operating pursuant to an interim
    permit issued in October, 1993. The landfill has a low
    permeability soil liner, final cover in place on certain portions
    of the landfill area, and systems in place for leachate
    collection, treatment and control, gas collection and control,
    and groundwater monitoring. Additionally, WMII asserts that the
    variance will have no adverse environmental impact; the September
    18, 1994 deadline from which WMII seeks a variance is a deadline
    for submission of information, rather than a deadline for the
    implementation of any requirements. Such information will be
    submitted no later than six months from this deadline. The
    Agency agrees that WMII’s requested variance would be consistent
    with all applicable federal law.
    AGENCY RECOMMENDATION
    The Agency recommends that the variance be granted, without
    conditions. The Agency has investigated the facts alleged in the
    petition, and pursuant to 35 Ill. Adm. Code 104.180(b), has made
    an effort to ascertain the views of the persons who might be
    affected by the grant of the requested variance; the Agency has
    published in a newspaper of general circulation in the county
    where the facility is located and for which the variance is
    sought, a legal notice and solicitation to ascertain the views of
    those persons who might be affected. In addition, the Agency has
    sent notice of the petition to the appropriate state legislators
    and county officials. As of the date of the Agency’s

    6
    recommendation, the Agency has received no responses to the
    newspaper notice. Accordingly, the Agency is of the opinion that
    a six—month extension is reasonable under the circumstances of
    this case, and recommends that the Board grant the petition for
    variance.
    CONCLUSION
    Based on the petition and Agency recommendation, the Board
    finds that requiring WMII to comply with the Section 814.104(c)
    deadline for filing its application for significant modification
    of the Settler’s Hill Landfill would impose an arbitrary or
    unreasonable hardship on WMII. As discussed above, a variance is
    a temporary reprieve from the Board’s regulations for which a
    petitioner agrees to commit to a plan to achieve compliance
    within the term of the variance. WMII has agreed to submit a
    complete permit application, known as an application for
    significant permit modification, which will satisfy the
    compliance requirements. We therefore grant WNII the requested
    six-month variance from the deadline set forth in 35 Ill. Adm.
    Code 814.104(c). WMII now has until March 18, 1995 to file its
    application for significant modification, at which time it must
    demonstrate facility—wide compliance. Additionally, the City of
    Geneva’s motion to intervene is denied for having failed to
    receive a majority vote of the Board.
    This opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    Waste Management of Illinois, Inc. (“WMII”) is hereby
    granted a variance from 35 Ill. Adm. Code 814.104(c) to terminate
    on March 18, 1995.
    Within forty-five days of the date of this order, WHII shall
    execute and forward to:
    Robert J. Scherschligt
    Division of Legal Counsel
    Illinois Environmental Protection Agency
    2200 Churchill Road
    P.O. Box 19276
    Springfield, IL 62794—9276
    a certificate of acceptance and agreement to be bound by all
    the terms and conditions of the granted variance. The 45—
    day period shall be held in abeyance during any period that
    this matter is appealed. Failure to execute and forward the
    certificate within 45 days renders this variance void. The
    form of the certificate is as follows:

    7
    I (We), _____________________________________
    hereby accept and agree to be bound by all terms and
    conditions of the order of the Pollution Control Board
    in PCB 94-212, dated October 6, 1994.
    Petitioner
    Authorized Agent
    Title
    Date
    IT IS SO ORDERED.
    R.C. Flemal, G.T.Girard and E.Dunham concurring.
    Section 41 of the Environmental Protection Act (415 ILCS
    5/41 (1992)) provides for the appeal of final Board orders within
    35 days of the date of service of this order. The Rules of the
    Supreme Court of Illinois establish filing requirements.
    ~
    also 35 Ill. Adm. Code 101.246, “Motions for Reconsideration”.)
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, hereby ceçtify that the apove~pinion and order was
    adopted on the
    ~-~---
    day of
    &—~Z~—A~
    1994, by a vote of
    7K) ~
    ~
    Dorothy M. Gq~’in, Clerk
    Illinois Po~7utionControl Board

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