ILLINOIS POLLUTION CONTROL BOARD

December 1, 1994

ILLINOIS LANDFILL, INC.,   

)

Petitioner,

)

PCB 94—200

(Variance)

ILLINOIS ENVIRONNENTAL

PROTECTION AGENCY,      

)

Respondent.

OPINION AND ORDER OF THE BOARD (by M. McFawn):

This matter is before the Board on an amended petition for

variance filed by Illinois Landfill, Inc. (ILl). ILl seeks a 12—

month variance from the requirements of 35 Ill. Adm. Code

814.104(c). Section 814.104 requires owners or operators of all

landfills permitted pursuant to Section 21(d) of the Illinois

Environmental Protection Act (Act) to file an application for

significant modification of existing municipal solid waste

landfill units. This application must demonstrate how the

facility will comply with the operating requirements set forth in

Part 814. Section 814.104(c) requires that the application be

filed within 48 months of the September 1990 effective date of

Part 814 of the Illinois Administrative Code, i.e., by September

18, 1994.

In

its

original petition filed July 25, 1994, ILl had

requested a variance until 12 months after the date its pending

local siting decision request decision becomes final, or if this

request is denied, for a period of 12 months. The Illinois

Environmental Protection Agency (Agency) filed its recommendation

and response on August 25, 1994, recommending that the variance

be granted for a period of 12 months, extending the filing date

for the application for significant modification until September

18, 1995. On October 26, 1994, ILl filed an amended petition,

wherein ILl requests that the variance be granted for a period of

12 months, as recommended by the Agency.

ILl had included in its original July 25, 1994 petition a

waiver of hearing, with supporting affidavit. Additionally, ILl

filed a motion for expedited decision on August 26, 1994.

However, on September 2, 1994, Larry Slates, Lonnie Seymour,

James Klaber, Faye Mott, and Hoopeston Community Memorial

Hospital (Objectors) filed an objection to the petition for

variance, and a hearing was scheduled for October 27, 1994.

Accordingly, the motion for expedited consideration was denied by

the Board on September 15, 1994.

On October 26, 1994, Objectors withdrew their objection and

request for hearing. Also on October 26th, ILl waived any

2

objection to cancellation of the hearing scheduled in this

matter. No other requests for hearing had been received, and

there was no other need for a hearing in this matter. The

hearing was cancelled.

The amended petition filed on October 26, 1994 restarted the

Board’s decision timeclock making the decision deadline February

23, 1995. However, in consideration of ILl’s motion for

expedited consideration originally filed, the Board is deciding

this matter well in advance of that decision due date. For the

reasons set forth below, we grant ILl the requested variance for

a period of 12 months.

BACKGROUND

ILl is the owner of the ILl Landfill, which is located in

Hoopeston, Vermilion County, Illinois. The facility has a

permitted area of 39.2 acres and a waste boundary area of 33

acres. (Pet. Br. at 4.) ILl estimates that the landfill has

approximately 1,402,044 cubic yards of remaining airspace volume.

(Pet. Br. at 5.) The facility has 18 full—time employees, and

utilizes additional part—time personnel on an as—needed basis.

(u.)

The existing service area encompasses an approximate 100—

mile radius from the landfill, including Vermilion, Iroquois, and

Ford counties, with an approximate 1990 population of 6,000,000.

(Id.) During February to December 1993, the facility received an

average of 161.78 tons of non—hazardous waste per day, including

municipal solid waste and special waste, for a total of 43,193

tons of waste.

On November 25, 1992, pursuant to Section 39.2 of the Act,

ILl submitted an application for expansion of this facility to

the City of Hoopeston (Hoopeston), seeking both a lateral and

vertical expansion. Under the proposed expansion, the total

facility area would be 160 acres, and the total remaining

airspace would be 13,000,000 cubic yards. (Pet. Br. at 5.)

Hoopeston granted siting approval for the proposed

expansion. However, the Board reversed Hoopeston’s approval of

the application, holding that Hoopeston’s finding that the

proposed expansion was necessary to accommodate the waste needs

of the intended service area did not comport with the

requirements of the statute. (Slates v. Illinois Landfills,

(September 23, 1993) PCB 93—106.) ILl submitted a motion for

reconsideration, which was denied. (Slates v. Illinois

Landfills, (December 16, 1993) PCB 93—106.) Subsequently, ILl

appealed the Board’s decision to the Fourth District Appellate

Court. This appeal, docketed as case #4—94—0041, is still

pending before the district court.

3

STATUTORY FRAMEWORK

In determining whether any variance is to be granted, the

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 I11.2d 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), ILl is required to file an

application for significant modification by September 18, 1994.

If ILl is required to comply with this deadline, it would have to

file its application based on the facility as it currently

exists. If ILl is then successful in its appeal of the Board’s

decision and ultimately obtains siting approval for the proposed

expansion, ILl would be required to file a second application for

the expanded facility. ILl seeks a variance from the filing

deadline in order to allow it to complete the appeal process for

the proposed expansion prior to filing its application for

significant modification, thus avoiding the expense and effort of

preparing and filing an application which could soon become

obsolete. (Pet. Br. at 3.) ILl 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.

(Pet. Br. at 9, 12.)

ILl has included cost estimates of preparing an application

for significant modification. ILl asserts that the baseline cost

of preparing an application for significant modification, if the

variance is approved and siting approval for the expansion is not

obtained, is approximately $125,500. (Pet. Br. at 9.) ILl then

asserts that denial of the variance would result in costs which

4

are “significantly more.” 

(u.)

ILl then asserts that “denial

of the variance could cost ILl several hundred thousand dollars,”

although it supplies no supporting calculations or information

for this statement. (Id.)

ILl also states that certain materials prepared for its

siting application could be used as elements of the application

for significant modification if siting approval is ultimately

granted. These materials would have to be redone if appeal on

siting is unsuccessful, since they were prepared based on the

proposed expanded facility. (Pet. Br. at 8.)

COMPLIANCE WITH OTHER REGULATIONS; ENVIRONMENTAL IMPACT

Petitioner asserts that the proposed variance will be fully

consistent with federal law. (Pet. Br. at 12.) Furthermore,

petitioner asserts that the facility has a state-of-the-art liner

and leachate collection system (Pet. Br. at 9), and that the

requested variance will have no impact on the environment, since

it will only extend the filing deadline set forth in Section

814.104(c) (Pet. Br. at 10).

AGENCY RECOMMENDATION

The Agency also believes that requiring petitioner to

prepare and the Agency to review an unnecessary second

application would needlessly waste the time and resources of both

parties (Ag. Rec. at 3), and generally concurs with the factual

representations in petitioner’s variance petition (Ag. Rec. at

2), and agrees that the proposed variance will be fully

consistent with federal law (Ag. Rec. at 4). The Agency

therefore recommends that the variance be granted for a period of

12 months commencing September 18, 1994, the period which ILl now

requests. (Ag. Rec. at 4.) The Agency asserts that the

appellate court’s decision should be forthcoming in early 1995,

which will allow ILl sufficient time to prepare its application

by September 18, 1995. (Ag. Rec. at 4.)

CONCLUSION

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. ILl has agreed to submit a complete permit

application, known as an application for significant permit

modification, satisfying the requirements of Section 830.104(c)

and thereby demonstrating compliance with Section 830.302, upon

expiration of the variance which, if granted as requested, will

be a year from the date such application was originally due by

Board rule. The Agency has recommended that the variance be

granted. The Agency agrees that absent the requested variance,

the Agency would have to review a second, largely duplicative

5

application if ILl is ultimately successful on appeal in the

Fourth District. According to the Agency and ILl, such

subsequent application and review would unnecessarily waste the

time and resources of ILl and the Agency.

ILl has presented no evidence about the actual monetary cost

it may suffer if the requested variance is denied. We know only

that both it and the Agency would suffer some inconvenience if

each is forced to prepare and review, respectively, a second

application. However, ILl has represented that there will be no

environmental impact if the variance is granted since the

landfill is a state of the art landfill which satisfies the

requirements of Section 814.302, the underlying regulations with

which the application for significant modification is intended to

demonstrate compliance. Therefore, the variance sought is one

for an extension of time to file such documentation, not from

compliance 

per

se with the underlying regulations.

Based upon this and the Agency’s support of the same, we

find that ILl has demonstrated that its claimed hardship

outweighs the public interest in having ILl complying with the

September 18, 1994 filing date. That date was established to

protect the public by requiring landfills such as ILl to

demonstrate compliance with the requirements of Section 830.302.

ILl has represented to the Board that the existing landfill

currently does so. Therefore, public interest is best served by

deferring the submission of the actual proof until after

resolution of the pending appeal, but only for one year from the

original filing date.

On this basis we grant ILl a variance from the deadline set

forth in 35 Ill. Adm. Code 814.104(c), and, as requested by ILl

and recommended by the Agency, the variance will be for a period

of 12 months, commencing September 18, 1994. ILl now has until

September 18, 1995 to file its application for significant

modification, at which time it must demonstrate facility-wide

compliance with Section 814.302.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

6

ORDER

Illinois Landfill, Inc. (ILl) is hereby granted a variance

from 35 Ill. Adm. Code 814.104(c) which terminates September 18,

1995.

Within forty-five days of the date of this order, ILl shall

execute and forward to:

John Kim

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:

I (We),

hereby accept and agree to be bound by all terms and

conditions of the opinion and order of the Pollution

Control Board in PCB 94-200, dated December 1, 1994.

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

7

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. (See

also 35 Ill. Adin. Code 101.246. “Motions for Reconsideration”.)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above opinion and order was

adopted on the 

day of   

~-4eIL-’

1994, by a vote

of

__________.

4L. ~

Dorothy M/7Gunn, Clerk

Illinois fp~ollution Control Board