ILLINOIS POLLUTION CONTROL BOARD
    September 19, 1996
    ILLINOIS LANDFILL, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 95-162
    (Variance - Land)
    OPINION AND ORDER OF THE BOARD (by G.T. Girard):
    On June 5, 1995 Illinois Landfill Inc. (ILI) filed a petition for variance from the
    requirements of 35 Ill. Adm. Code 814.104(c). On June 29, 1995 the Illinois Environmental
    Protection Agency (Agency) filed its recommendation that the petition be granted. On May
    22, 1996 ILI filed an amended petition (Am.Pet.) and waived hearing. On June 10, 1996 the
    Agency filed an amended recommendation (Am.Rec.).
    On July 17, 1996 the Board received an objection and request for hearing filed by
    William J. Regan. On August 1, 1996 the Board directed that a hearing be held. Hearing was
    held before Board hearing officer Deborah Frank on August 21, 1996 in Danville, Vermilion
    County, Illinois. Three members of the public testified at hearing. In addition, on August 26,
    1996 the Board received a public comment (P. C.) from William J. Regan and ILI filed a
    response (P.C. Res.) on August 28, 1996.
    The Board previously granted a variance to ILI from the requirements of 35 Ill. Adm.
    Code 814.104(c) until September 18, 1995. (Illinois Landfill, Inc. v. IEPA, PCB 94-200
    (December 1, 1994) (hereinafter “PCB 94-200”.) ILI seeks an extension of that variance for
    one year until September 18, 1996.
    For the reasons discussed below, the Board will grant the variance as requested by ILI.
    BACKGROUND
    ILI currently owns and operates a landfill in Hoopeston, Vermilion County, Illinois.
    (Am. Pet. at 2.) The landfill is a permitted facility with an area of 39.2 acres and a waste
    boundary of about 33 acres. (Am. Pet. at 5.) The estimated remaining airspace volume for
    refuse is approximately 1,402,044 cubic yards based on an April 1994 filed survey. (
    Id.
    )
    ILI employs 18 full time employees and accepts waste generated within Vermilion,
    Iroquois, and Ford counties. (Am. Pet. at 6.) The existing service area encompasses an
    approximately 100 mile radius from the landfill. (
    Id.
    )
    2
    On November 25, 1992 ILI submitted an application to the City of Hoopeston for siting
    approval for expansion of the ILI landfill. Hoopeston approved siting, and that approval was
    appealed to the Board. (Slates v. Illinois Landfills, Inc., PCB 93-106 (September 23, 1993)
    (hereinafter PCB 93-106); Am. Pet. at 3.) The Board reversed Hoopeston’s siting approval
    and on December 14, 1994 the Appellate Court reversed and remanded the decision of the
    Board. (Illinois Landfills, Inc. v. IPCB, et al, 4-94-0041 (April 28, 1994) (4th Dist.).) The
    mandate of the Appellate Court issued on April 28, 1995. (Am. Pet. at 3.) On November 7,
    1995 the application for site approval for expansion was approved by Hoopeston.
    STATUTORY AND REGULATORY FRAMEWORK
    In determining whether a variance is to be granted, the Act requires the Board to decide
    if 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).)
    Furthermore, the petitioner bears the burden of proving that its claimed hardship outweighs the
    public interest in attaining compliance with regulations designed to protect the public.
    (Willowbrook Motel v. Pollution Control Board, 135 Ill.App.3d 343, 481 N.E.2d 1032 (1st
    Dist. 1977).) Only by such a showing can the claimed hardship rise to the level of arbitrary or
    unreasonable hardship.
    In addition, a variance, by its very nature, is a temporary reprieve from compliance
    with the Board’s regulations, and compliance is to be sought regardless of the hardship which
    eventual compliance presents an individual polluter. (Monsanto Co. v. Pollution Control
    Board, 67 Ill.2d 276, 287, 367, N.E.2d 684, 688 (1977).) Accordingly, 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, unless certain special
    circumstances exist.
    ILI is seeking variance relief from 35 Ill. Adm. Code 814.104(c). The Board’s rules at
    Section 814.104 require that all owners or operators of landfills file an application for
    significant modification to permits for existing facilities. Section 814.104(c) states:
    The application shall be filed within 48 months of the effective date of this Part, or at
    such earlier time as the Agency shall specify in writing pursuant to 35 Ill. Adm. Code
    807.209 or 813.201(b).
    ILI had previously received a variance such that the application for significant
    modification was due September 18, 1995. ILI is now seeking a variance to extend the
    deadline for the filing of a significant modification permit application to September 18, 1996
    for the ILI facility in Hoopeston, Illinois. (Am. Pet. at 2.) ILI is further requesting that the
    Board grant the relief retroactively to September 18, 1995. (
    Id.
    )
    HARDSHIP AND ENVIRONMENTAL IMPACT
    ILI in its previous variance request maintained that a hardship would exist if ILI was
    required to submit the significant modification permit (sig mod) application for its site by
    3
    September 18, 1994 because ILI was attempting to obtain siting approval for an expansion of
    its landfill. (PCB 94-200 at 3.) ILI argued that the expense and effort of preparing and filing
    a sig mod application in 1994 would be a hardship if the 1994 sig mod application were
    rendered obsolete by successful siting approval, which would require submission of another sig
    mod application. (
    Id
    .) The Board agreed that ILI’s claimed hardship outweighed the public
    interest in having ILI comply with the September 18, 1994 deadline for submission of a sig
    mod application and granted a variance until September 18, 1995. (PCB 94-200 at 5.)
    ILI maintains that it was unable to comply by September 18, 1995 as the granting of
    local siting approval was not complete. Thus, ILI would have been required to file a sig mod
    application for the facility as the facility existed and a second sig mod application would have
    been necessary when the siting process was complete. ILI states:
    Being required to prepare multiple permit applications, at a potential cost
    approaching several hundred dollars when one will potentially suffice is an
    arbitrary and unreasonable hardship. Not only would it be a hardship for ILI in
    terms of the timing and cost but potentially would also result in Agency review
    and issuance of a separate permit for significant modification which would
    become obsolete at about the same time as issued.
    (Am.Pet. at 12.)
    ILI maintains that the requested variance will have no effect on the environment as ILI
    is required to continue to comply with its existing permits. (Am.Pet. at 10.)
    CONSISTENCY WITH FEDERAL LAW
    ILI asserts and the Agency agrees that granting this variance would be consistent with
    federal law. (Am. Pet. at 12; Am. Rec. at 4.)
    COMPLIANCE PLAN
    ILI’s plan for compliance is to file the sig mod application by the end of the variance
    period. (Am.Pet. at 10-11.) A number of the components of the sig mod application have
    been prepared in conjunction with the siting approval application. (
    Id
    .) Further, ILI
    maintains that the only alternatives for compliance, other than submission of two sig mod
    applications, would be to seek a site-specific change in the rule. (Am.Pet. at 11.) ILI
    believes that such relief would be more extensive than necessary for ILI. (
    Id
    .)
    AGENCY RECOMMENDATION
    The Agency “generally concurs” with the facts as presented by ILI in ILI’s amended
    petition for variance. (Am. Rec. at 3.) The Agency “acknowledges” the duplicative nature of
    filing two sig mod applications as well as the “arduous” task for both ILI and the Agency in
    preparing and reviewing two sig mod applications. (Am.Rec. at 4.) The Agency “believes
    that ILI’s requested relief is reasonable in duration, particularly when taking into consideration
    the extenuating circumstances beyond ILI’s control.” (Am. Rec. at 4.) Therefore, the
    4
    Agency recommends that ILI be granted a variance until September 18, 1996 to file its sig
    mod application. (Ag. Rec. at 5.)
    OBJECTORS
    The testimony at hearing indicated that the adjacent farm of Mr. Regan has been
    experiencing ponding on areas of the farm. (Tr. at 16.) In addition, the drainage tile for that
    area is clogged with clay. (Tr. at 17.) The ponding and drainage problems are caused by the
    landfill according to Mr. Regan, Mr. Sam Martin and Mr. Allen Decker. The problems have
    resulted in a loss of crops from Mr. Regan’s farm. (Tr. at 18.)
    Mr. Regan in his written comment asserts that ILI has a history of noncompliance with
    the Board’s regulations and the provisions of the previous variance. (P.C. 1-2.) Mr. Regan
    also asserts that ILI has not demonstrated that the claimed hardship outweighs the public
    interest in attaining compliance. (P.C. 3-4.) Mr. Regan argues that the Board should deny the
    requested variance. (
    Id
    .)
    The Board is not persuaded that the objections raised by Mr. Regan have a direct
    bearing on the variance requested by ILI. ILI is requesting the variance so that it may submit
    one sig mod permit application to the Agency, rather than two. Mr. Regan’s objection is
    based on allegations that, if found to be true, could lead to a finding that ILI has not operated
    the landfill according to Illinois environmental law and Board regulations. However, the
    Board does not make such findings in a variance proceeding. Rather, the finding that ILI may
    have violated environmental law would be made in an enforcement proceeding.
    DISCUSSION
    The purpose of a variance has been stated many times by the Board and the courts. In
    Monsanto Company v. Pollution Control Board, (June 1, 1977), 67 Ill.2d 276, 10 Ill. Dec.
    231, 367 N.E.2d 684, 688, the Supreme Court, in determining whether variances can be
    permanent, stated that the Act’s ultimate goal is for all polluters to be in compliance and that
    “[t]he variance provisions afford some flexibility in regulating speed of compliance, but a total
    exemption from the statute would free a polluter from the task of developing more effective
    pollution-prevention technology”. The Appellate Court, citing to Monsanto in City of
    Mendota v. Pollution Control Board, (3rd Dist. 1987), 112 Ill. Dec. 752, 757, 514 N.E.2d
    218, stated “[t]he variance provisions of the Act are intended to afford some flexibility in
    regulating the speed for compliance.” Finally the Appellate Court in Celotex Corporation v.
    Illinois Pollution Control Board (4th Dist. 1978), 65 Ill. App. 3rd 776, 22 Ill. Dec. 474, 382
    N.E.2d 864, 866, phrased the purpose as “[t]he issues in a variance proceeding focus upon
    whether compliance should be excused for a period of time.”
    The Board previously found a hardship which outweighed the public interest was
    present for ILI. (PCB 94-200 at 5.) ILI has diligently sought siting approval during the time
    that the original variance was in place and has been granted such approval. In this proceeding
    ILI has committed to compliance no later than September 18, 1996. Therefore, the Board
    finds that the hardship involved in submitting two significant modification permit applications
    5
    outweighs the public interest in achieving immediate compliance. ILI is operating under
    permits and ILI maintains it is complying with those permits. Therefore, granting this
    variance will have no environmental impact at this time.
    Retroactive Variance
    ILI has requested a retroactive variance. The Board has determined that in the absence
    of unusual or extraordinary circumstances, the Board renders variances effective on the date
    the Board order is issued. (LCN Closers, Inc. v. EPA, (July 27, 1989), PCB 89-27, 101 PCB
    283, 286; Borden Chemical Co. v. EPA, (December 5, 1985), PCB 82-82, 67 PCB 3, 6; City
    of Farmington v. EPA, (February 20, 1985), PCB 84-166, 63 PCB 97; Hansen-Sterling Drum
    Co. v. EPA, (January 24, 1985), PCB 83-240, 62 PCB 387, 389; Village of Sauget v. EPA,
    (December 15, 1983), PCB 83-146, 55 PCB 255, 258; Olin Corp. v. EPA, (August 30,
    1983), PCB 83-102, 53 PCB 289, 291.) Although the Board does not generally grant
    variances retroactively, upon specific justification retroactive variances have been granted.
    (Deere & Co. v. EPA, (September 8, 1988), PCB 88-22, 92 PCB 91.) The Board stated that
    the reasoning behind the general rule is to discourage untimely filed petitions for variance, i.e.
    variances filed after the start of the claimed arbitrary or unreasonable hardship creating the
    desire for a retroactive start, and because the failure to request relief in a timely manner is a
    self-imposed hardship. (Fedders-USA v. EPA, (April 6, 1989), PCB 86-47, 98 PCB 15, 19,
    DMI, Inc. v. EPA, (February 23, 1987), PCB 88-132, 96 PCB 185, 187 and American
    National Can Co. v. EPA, (August 31, 1989), PCB 88-203, 102 PCB 215, 218.)
    Timeliness of filing is a primary factor in considering “special circumstances”. First in
    considering “special circumstances” the Board has routinely refused to apply a retroactive
    inception date where either the petitioner filed late without explanation or where delay resulted
    through some fault of the petitioner. LCN Closers, Inc., 101 PCB 283, 286; DMI, Inc., 96
    PCB 185, 187; Borden Chemical Co., 67 PCB 3, 6; City of Farmington, 63 PCB 97, 98;
    Hansen-Sterling Drug Co., 62 PCB 387, 389; Village of Sauget, 55 PCB 255, 258; Olin
    Corp., 53 PCB 288, 291. Second, a “principle consideration in the granting of retroactive
    relief is a showing that the petitioner has diligently sought relief and has made good faith
    efforts at achieving compliance”. (Deere, 92 PCB 91.)
    The Board finds that granting this variance from September 18, 1995 is consistent with
    the Board’s previous decisions as ILI has timely and diligently sought relief. This case is
    similar to Land and Lakes Company v. IEPA, PCB 96-198 (September 5, 1996), (Land and
    Lakes) where the requested relief was mostly retroactive. In Land and Lakes, the Board
    granted the relief because of the nature of the regulation involved, the diligence Land and
    Lakes had shown and the similarities shared by Land and Lakes and other petitioners who have
    received variances from these regulations. (Land and Lakes at 6.) ILI filed a petition
    requesting an extension of its variance almost one hundred days prior to the expiration of the
    variance. ILI did not receive siting approval until November 1995, over a month after the
    expiration of the prior variance. Thus, the ILI timely sought the extension of the prior
    variance while pursuing local siting approval. Therefore, retroactive relief is appropriate.
    6
    CONCLUSION
    ILI has diligently sought siting approval for expansion of ILI’s landfill during the
    period of the previous variance. ILI has demonstrated that submission of a significant
    modification permit for the ILI facility by September 18, 1995 would have been an arbitrary
    and unreasonable hardship. Further, the record demonstrates that the granting of the variance
    will have no adverse environmental impact. Therefore, the Board grants ILI a retroactive
    variance for submission of ILI’s significant modification permit application beginning on
    September 18, 1995 and ending September 18, 1996.
    This opinion constitutes the Board’s findings of fact and conclusions of law.
    ORDER
    Illinois Landfill Inc. is hereby granted a variance from 35 Ill. Adm. Code 814.104(c)
    which begins on September 18, 1995 and terminates on September 18, 1996.
    IT IS SO ORDERED.
    If petitioner chooses to accept this variance subject to the above order, within 45 days
    of the date of this order, petitioner shall execute and forward to:
    Robert J. Scherschligt
    Illinois Environmental Protection Agency
    P.O. Box 19276
    2200 Churchill Road
    Springfield, Illinois 62794-9276
    a Certification of Acceptance and Agreement to be bound to all terms and conditions of this
    variance, and such certification shall be in the form specified by the Board. 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 and of no force and effect as
    a shield against enforcement of the rules from which this variance is granted.
    CERTIFICATION
    I (We), , hereby accept and agree to be bound by all
    terms and conditions of the order of the Pollution Control Board in PCB 95-162, September
    19, 1996.
    Petitioner _____________________________________
    7
    Authorized Agent ______________________________
    Title _________________________________________
    Date ______________________________
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) 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.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 _____ day of ___________, 1996, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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