ILLINOIS POLLUTION CONTROL BOARD
July 8, 1998
CITY OF SALEM,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 98-1
(Variance - Land)
ORDER OF THE BOARD (by M. McFawn):
Before the Board is a “Petition for Variance” filed by the City of Salem, Illinois,
seeking a variance from either 35 Ill. Adm. Code 814.401(a) or in the alternative the
requirements of 35 Ill. Adm. Code 814.Subpart C to the extent they exceed the requirements
of 35 Ill. Adm. Code 814.Subpart D. For the reasons set forth below, the petition is denied.
PROCEDURAL HISTORY
The City of Salem (Salem) filed its “Petition for Variance” on July 2, 1997. On July
28, 1997, the Illinois Environmental Protection Agency (Agency) filed its “Recommendation,”
in which it recommended that the variance be denied. On September 12, 1997, Salem filed a
“Motion for Leave to File Instanter Petitioner’s Response to Agency Recommendation” and
“Petitioner’s Response to Agency Recommendation” (Response). By an order adopted on
September 18, 1997, the Board granted Salem’s motion and accepted its Response. Salem
waived a hearing and no other person requested a hearing; accordingly, no hearing was held.
STATUTORY AND REGULATORY FRAMEWORK
The Board’s jurisdiction and authority in this matter arise from the Environmental
Protection Act (Act), 415 ILCS 5 (1996). The Board is charged therein with the responsibility
to “grant individual variances beyond the limitations prescribed in this Act, whenever it is
found upon presentation of adequate proof, that compliance with any rule or regulation,
requirement or order of the Board would impose an arbitrary or unreasonable hardship.” 415
ILCS 5/35(a) (1996). The Agency is 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) (1996).
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 regulations at issue would impose an arbitrary or unreasonable hardship. 415 ILCS
5/35(a) (1996). Furthermore, the burden is upon the petitioner to show that its claimed
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hardship outweighs the public interest in attaining compliance with regulations designed to
protect the public. Willowbrook Motel v. IPCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032, (1st
Dist. 1977). Only with such a showing can the claimed hardship rise to the level of arbitrary
or unreasonable hardship.
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. IPCB, 67 Ill.2d 276, 367 N.E.2d 684 (1977). Accordingly, except in certain special
circumstances, a variance petitioner is required, as a condition to grant of variance, to commit
to a plan which is reasonably calculated to achieve compliance within the term of the variance.
Accordingly, a variance petition is required under 35 Ill. Adm. Code 104.121(f) to include:
A detailed description of the existing and proposed equipment or
proposed method of control to be undertaken to achieve full
compliance with the Act and regulations, including a time
schedule for the implementation of all phases of the control
program from initiation of design to program completion and the
estimated costs involved for each phase and the total cost to
achieve compliance[.]
The petition before the Board seeks a variance from either 35 Ill. Adm. Code
814.401(a), or the requirements of 35 Ill. Adm. Code 814.Subpart C to the extent they exceed
the requirements of 35 Ill. Adm. Code 814.Subpart D. Subparts C and D set forth standards
for landfills. Subpart C sets forth standards for landfills which are to remain open beyond
seven years after the effective date of Part 814; Subpart D sets forth the standards for landfills
which will close within seven years. The requirements of Subpart C are considerably more
stringent than those of Subpart D. Section 814.401(a) provides (emphasis added):
The standards in [Subpart D] are applicable to all existing units
of landfills, including those exempt from permit requirements in
accordance with Section 21(d) of the Act, that have accepted or
accept chemical and putrescible wastes. Based on an evaluation
of the information submitted pursuant to Subpart A and any
Agency site inspection, units that meet the requirements of this
Subpart shall initiate closure between two and seven years after
the effective date of this Part.
Part 814 was effective September 18, 1990; accordingly, the latest date for landfills subject to
Subpart D to initiate closure was September 18, 1997.
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FINDINGS OF FACT
The Board finds the facts set forth here based upon the affidavits of Roger D. Kinney
and Ronald R. Steward, verifying the factual assertions in Salem’s petition and the Agency’s
recommendation, respectively.
Salem is a municipality in Marion County, Illinois, which owns and operates a
municipal solid waste and non-hazardous special waste landfill located in the city. Salem
operates the landfill as part of the ongoing municipal services provided to its residents. The
landfill includes two units of approximately eleven acres each: a southern unit which operated
under Subpart D, and a northern unit (currently under development) which will operate under
Subpart C.
The Agency originally received notice that the landfill (a single unit at the time) would
be complying with Subpart C. A “significant modification” permit application was received
by the Agency on September 13, 1993. The first application was denied as incomplete in a
letter dated October 6, 1993, and deemed not filed 35 days after that letter since Salem did not
address deficiencies identified in the letter. A second application was received by the Agency
on September 16, 1994. This application was also identified as incomplete in a letter dated
October 14, 1994. A third application was received on May 15, 1995. This application also
did not meet requirements. At Salem’s request, this application was not denied, but kept
pending while siting for a proposed expansion was resolved. On December 20, 1995, the
Agency received an addendum to the application, which proposed treatment of part of the
landfill as a Subpart D unit and part as a Subpart C unit. On June 2, 1997, after five
additional submissions of additional information during 1996 and 1997, Salem was issued a
significant modification permit evidencing that as of that date it had adequately demonstrated
that the southern unit of the landfill met the requirements of Subpart D and the northern unit
would be developed and operated so as to meet the requirements of Subpart C.
Development of the northern unit for operation by Salem will require approximately
one year from the date this variance petition was filed. Salem seeks a variance to keep the
southern unit open until the northern unit is operational. If the southern unit is required to
close prior to that time, Salem will incur the costs and suffer the inconvenience of trucking
the city’s waste to another landfill, as well as lose income from tipping fees for the time
between closure of the southern unit and opening of the northern unit.
DISCUSSION
Salem’s variance petition contains no compliance plan, as required by 35 Ill. Adm.
Code 104.121(f). Based upon the petition, even if the requested variance were granted, Salem
would never achieve compliance with the regulations from which a variance is requested.
Should variance from Section 814.401(a) be granted, by definition compliance would be
impossible,
i.e.
, if Salem is granted a variance from the closing date of September 18, 1997,
and its landfill continues to receive waste for one year thereafter, then there is no way for the
landfill to have closed by September 18, 1997. Yet closure by September 18, 1997, would be
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required for compliance with Section 814.401(a). Furthermore, a variance for one year from
various requirements of Subpart C would not result, at the end of that year, in compliance by
Salem with the requirements of Subpart C. Salem is not proposing to upgrade the southern
unit of the landfill to Subpart C specifications.
The only way in which Salem could possibly come into compliance would be through
its petition for an adjusted standard, pending before the Board under docket number AS 98-2.
The Board faced a similar situation in Waste Professionals, Inc. v. Illinois Environmental
Protection Agency (September 18, 1997), PCB 97-228. In Waste Professionals, the Board
noted
[I]t is unusual to grant variance where the only compliance plan
is to have the regulation at issue changed at some future date. As
the Board has long held, a proposal for prospective regulatory
relief does not constitute a compliance plan and cannot be the
basis for finding arbitrary or unreasonable hardship.
Nevertheless, the Board has under special circumstances found
exception to this rule. Waste Professionals, slip op. at 6.
In Waste Professionals, the Board found that special circumstances were present, and granted
Waste Professionals a variance. Several important circumstances, however, distinguish that
case from this one. The variance in Waste Professionals was granted upon the
recommendation of the Agency and with inclusion of a number of agreed conditions. The
term of the variance was relatively short, and was intended only to facilitate Board
consideration of an adjusted standard petition. Although the entire landfill in Waste
Professionals did not meet Subpart C requirements, the trench which Waste Professionals
sought to keep open did. In this case, by contrast, the Board finds no special circumstances
which would warrant granting Salem a variance based only on a pending adjusted standard
petition.
Additionally, Salem has not established that compliance with the Subpart D closure
date would result in an arbitrary or unreasonable hardship. In this case, the Board finds that
the hardship suffered by Salem is substantially self-imposed. Salem (like every other landfill
operator in Illinois) has been on notice of the closing deadline for Subpart D landfills for
years. From the chronology set forth above the Board concludes that Salem’s inability to
obtain the necessary permits in time to complete development of the northern unit prior to the
date by which the southern unit was required to close was due more to Salem’s failure to
timely submit the necessary applications and information to the Agency, than time necessary
for review of that information. A self-imposed hardship cannot be the unreasonable or
arbitrary hardship upon which the grant of a variance can be predicated. Willowbrook Motel
Partnership v. Illinois Environmental Protection Agency (September 8, 1983), PCB 81-149. It
was clear that the hardship faced by the petitioner in Waste Professionals was due to an
external factor,
i.e.
, unanticipated loss of a major customer of the landfill.
Salem has provided no compliance plan, nor has Salem demonstrated that it would
suffer an arbitrary or unreasonable hardship if the variance is denied. The Board thus finds
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that Salem is not entitled to a variance from the closure deadline of Subpart D, or from the
requirements of Subpart C to the extent they exceed the requirements of Subpart D.
CONCLUSION
For the foregoing reasons, the petition of the City of Salem for a variance from 35 Ill.
Adm. Code 814.401(a), or in the alternative for the requirements of 35 Ill. Adm. Code
814.Subpart C which exceed the requirements of 35 Ill. Adm. Code 814.Subpart D, is denied.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 8th day of July 1998 by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
