ILLINOIS POLLUTION CONTROL BOARD
    November 16, 1995
    COMMUNITY LANDFILL CORPORATION,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 95-137
    )
    (Variance-Land)
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    DISSENTING OPINION (by J. Theodore Meyer):
    I respectfully dissent from the majority opinion. I believe
    the Board, in today's order, misapplied relevant case law,
    overlooked pertinent facts in this matter and ignored new facts
    presented in CLC's Motion for Reconsideration, facts which bear a
    connection to due diligence and good faith efforts at compliance,
    a key argument upon which the majority relied in its denial of
    CLC's request for variance. Therefore, CLC's Motion for
    Reconsideration should have been granted. I also reiterate my
    position that the September 18, 1995 Board order in this matter
    failed to properly weigh the negligible enviromental harm against
    the hardships suffered by Community Landfill Corporation (CLC),
    the City of Morris and the citizens of Morris. Therefore, CLC
    should be granted a prospective variance.
    Factual Examination and Application to Relevant Law
    In its September 18, 1995 order the Board denied CLC its
    request for variance from the deadline for submission of its
    significant modification application. The Board reasoned that
    CLC failed to prove due diligence in requesting the variance
    because it had a deadline for parcel B, missed the deadline,
    never asked for an extension of the deadline and then submitted
    its request for variance 22 months late. I believe the Board
    overlooked similar scenarios present in prior Board cases and
    ignored the relevant facts of those cases presented to the Board
    in CLC's Motion for Reconsideration. Based upon this new
    information, I believe CLC should have received a variance as the
    petitioners in prior cases have.
    In its Motion for Reconsideration, CLC stated that it
    discovered new information regarding the series of events that
    occurred in Atkinson Landfill Company, Inc. v. IEPA, PCB 94-259
    (January 11, 1995). Specifically, Atkinson missed a September
    15, 1993 deadline for submitting its significant modification
    application, requested and received an extension until February
    15, 1994, missed that deadline, and without any explanation,
    submitted a request for variance from that deadline over seven
    months late. (Mot. for Recon. at 34.) The Board, in its order
    2
    granting a retroactive variance, did not seem overly concerned
    with the tardy submission of Atkinson's petition for variance.
    (Atkinson, PCB 94-259 at 6.).
    In the instant matter, the Board relied on information that
    Atkinson was subject to the general significant modification
    application deadline of September 18, 1994, and therefore was
    only two days late in submitting its petition for variance. (PCB
    95-137 at p.9.) The Board pointed to this information to support
    its argument that Atkinson was diligent and made a good faith
    effort in timely requesting a variance, whereas CLC was late in
    its request. (Id.) However, the new information CLC set forth
    in its Motion for Reconsideration clearly shows a different
    timeline of events in Atkinson. Since this information is
    directly relevant to the issues in this matter, I would have
    granted the Motion for Reconsideration.
    In addition to filing their petitions for variance well
    after their respective deadlines, both Atkinson and CLC cited to
    ongoing negotiations and the desire to avoid the cost of
    submitting duplicative applications as the reason for the tardy
    filings. (Atkinson, PCB 94-259 at 6, CLC Pet. at 11-12.) The
    same rationale was used in another case where the petitioner
    submitted its petition for variance three months late. (Envirite
    Co. v. IEPA, PCB 94-259 (January 11, 1995.) Arguably, CLC was
    almost two years late in submitting its petition for variance, a
    substantially more tardy submission than in Atkinson or Envirite.
    However, the lateness of CLC's filing is a mitigating factor
    relevant to the question of granting a retroactive variance, not
    to the question of whether or not a variance should be granted at
    all. One could also argue that the Agency recommended a grant of
    the variance in Atkinson and Envirite but requested a denial for
    CLC. Yet, it was the Agency that recommended CLC seek a variance
    in order to achieve compliance. (Tr. at 233-38.) The Agency
    cannot now be heard to recommend a denial of the very relief it
    encouraged CLC to seek. In sum, the similarities between these
    cases outweigh their differences; therefore, for the sake of
    consistency and fairness, CLC should have been granted a
    variance.
    Environmental Impact versus Hardship
    The rule of law regarding the burden of proof in petitions
    for variance is very clear. The petitioner must prove that
    immediate compliance with the regulations at issue would impose
    an arbitrary or unreasonable hardship. (415 ILCS 5/35(a).) A
    hardship is arbitrary or unreasonable if the petitioner can prove
    that it outweighs the public interest in attaining compliance
    with regulations designed to protect the public. (We Shred It,
    Inc. v. IEPA, PCB 92-180 at 3 (November 18, 1993).)
    The question in this case is whether the hardships resulting
    3
    from a denial of variance outweigh the public interest in
    protecting the environment and timely submissions of significant
    modification applications. CLC outlined the ramifications if it
    is denied a variance: CLC will likely close operations at Morris
    Community Landfill; the City of Morris will lose substantial tax
    and royalty revenues; and the citizens of Morris will lose the
    benefit of free garbage pickup and road services. (Mot. for
    Recon. at 12.) On the other hand, little environmental impact is
    anticipated since parcel A, the part of Morris Community Landfill
    at issue, has been inactive since 1980. (Id.) It is evident,
    then, that the hardships in this case outweigh the negligible
    environmental harm; therefore, CLC's petition for variance should
    have been granted.
    As I stated in my previous dissent, the variance granted in
    this case should be prospective only. As operator of Parcel B,
    CLC was well aware that it had to submit a significant
    modification application by June 15, 1993. If lease negotiations
    prevented it from submitting an application by that date, CLC
    should have asked for an extension. This lack of diligence on
    CLC's part precludes the Board from justifying a retroactive
    variance. However, a prospective variance is an appropriate
    remedy. After all, the ultimate goal for the petitioner is to
    achieve compliance as soon as possible. CLC was ready to comply
    within 45 days of the Board's September 18, 1995 order. Rather
    than delay compliance further, I would grant a 45-day prospective
    variance for CLC to submit its significant modification
    application to the Agency.
    For these reasons, I respectfully dissent
    _________________________
    J. Theodore Meyer
    Board Member
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board, do hereby certify that the above dissenting opinion was
    filed on the ____________ day of ______________, 1995.
    _________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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