96198D.PDF

ILLINOIS POLLUTION CONTROL BOARD

September 5, 1996

LAND AND LAKES COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

Respondent.

)

PCB 96-198

(Variance - Land)

JAMES A. CARROLL AND JOHN F. KENNEDY OF QUINLAN & CRISHAM, LTD.

APPEARED ON BEHALF OF PETITIONER;

MARK V. GURNIK APPEARED ON BEHALF OF RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. Yi):

This matter comes before the Board on a petition for variance filed by Land and Lakes

Company (Land and Lakes or petitioner) on March 18, 1996. The Illinois Environmental

Protection Agency (Agency) filed its recommendation on April 11, 1996. Petitioner waived

its right to a public hearing, however, the City of Chicago filed a written objection and request

for hearing on April 18, 1996. A hearing was held at the Board’s Chicago office on July 26,

1996. The City of Chicago did not attend the hearing and the parties did not present any

testimony.

Petitioner is requesting a 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 Act to file an application for significant modification of existing

municipal solid waste landfill units. (415 ILCS 5/21(d).) 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.

Petitioner is seeking a variance from March 19, 1996 to September 19, 1996.

The Board's responsibility in this matter arises from the Environmental Protection Act

(Act) (415 ILCS 5/1 et seq.) 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).)

More generally, the Board's responsibility in this matter is based on the system of checks and

balances integral to Illinois environmental governance: the Board is charged with the

rulemaking and principal adjudicatory functions, and the Agency is responsible for carrying

out the principal administrative duties.

BACKGROUND

Petitioner owns and operates a municipal solid waste landfill in the Village of Dolton

(Village), Illinois, Cook County known as River Bend Prairie (landfill). (Pet. at 1.)

The

landfill has been in operation since 1975 (Pet. at 4.) The landfill is a non-hazardous waste

landfill which employed 9 employees as of 1995 and accepts, on average, approximately 1,500

cubic gate yards a day. (Pet. at 4.)

The petitioner is currently seeking an expansion for the 68 acre landfill from the

Village. (Pet. at 4-5.) Petitioner is seeking to expand its facility in order to continue to serve

its community’s needs. (Pet. at 4.) The expansion would increase capacity of approximately

10.8 million cubic gate yards. (Pet. at 4.) Petitioner states that it expects the Village to make

a decision in July. (Pet. at 6.)

On March 18, 1991, the petitioner, in accordance with 35 Ill. Adm. Code 814.103,

notified the Agency that it will be operated pursuant to 35 Ill. Adm. Code 814.Subpart E and

then on March 23 1992 revised its notice indicating that it will be operated pursuant to 35 Ill.

Adm. Code 814.Subpart D. (Ag. Rec. at 3.) The Agency requested a significant modification

application on or before January 1, 1993, but on December 3, 1992 granted an extension until

February 1, 1993. (Ag. Rec. at 4.) Petitioner submitted its significant modification on

February 1, 1993 but was deemed not filed by the Agency due to deficiencies. (Ag. Rec. at

4.)

On June 9, 1993, the petitioner again revised its notification and stated that the facility

would be operated pursuant to 35 Ill. Adm. Code 814.Subpart C. (Ag. Rec. at 4.) The

Agency granted two requests to extend the deadline for submittal of the significant

modification application until August 15, 1994. Petitioner filed a significant modification

application on August 15, 1994 but withdrew the application on May 2, 1995. (Ag. Rec. at

4.) The Agency granted further extension up to March 19, 1996. (Ag. Rec. at 4.) Petitioner

has obtained an interim permit from the Agency, #1993-406-IN, certifying its compliance with

RCRA Subtitle D requirements. (Stip. at 2.)

The petitioner seeks the variance until after the

decision of the Village concerning its expansion to avoid unnecessary duplication in filing the

required significant modification.

The petition for variance will be referred to as “Pet. at .”, the Agency recommendation will

be referred to as “Ag. Rec. at .”.

The joint exhibit #1, the Stipulation of Agreed Facts will be referenced as “Stip. at .”.

REGULATORY FRAME WORK

Section 814.104(c) of the Board's regulations requires the operator of a landfill which

remains open after September 18, 1994, to file an application for significant modification of its

current permit no later than September 18, 1994, or at such earlier time as the Agency may

require. (35 Ill. Adm. Code 814.104(c).) However, petitioner received an extension of time

to file its significant modification until March 19, 1996 and has been operating under an

interim permit issued on October 1, 1993. Petitioner is requesting an extension of this

deadline until September 19, 1996 through the use of variance relief.

COMPLIANCE PLAN

Petitioner states that it “is in compliance with all Subtitle D requirements, as well as

the Illinois requirements implementing the same”. (Pet. at 5.) Petitioner states that it will

submit the significant modification “no later than September 19, 1996”. (Pet. at 8.)

Therefore it appears that the compliance plan would be to wait until the Village makes its

decision concerning the expansion and then file a significant modification which encompasses

the entire site including the proposed expansion or just the current facility if siting is denied.

Petitioner filed its application for siting with the Village on March 11, 1996. (Pet. at 4-5.)

Pursuant to Section 39.3(e) if the Village fails to take final action within 180 days from the

date of filing the application the applicant may deem the request approved. (415 ILCS

5/39.2.) Therefore, Petitioner will know by September 7, 1996 whether siting has been

approved or not which leaves a short period of time to finalize the significant modification

application prior to the end of the variance.

HARDSHIP

Petitioner states that it will incur an arbitrary and unreasonable hardship if the request

for variance is denied because without the requested extension of time, it will incur

“substantial costs and expenses to prepare and file two significant modification applications for

River Bend Prairie, rather than one significant modification application upon siting approval of

the expanded facility”. (Pet. at 7.) Additionally petitioner states that it cannot, by law, file

the significant modification application to include the expanded portion of the facility until

after the Village of Dolton grants siting approval. (Pet. at 7.) Furthermore, petitioner argues

that it will conserve the scarce resources of the Agency by granting the variance and avoiding

the filing of two significant modifications. (Pet. 7-8.).

The Agency recognizes the costs associated with the submittal of two significant

modifications but does not believe that the Agency’s burden of reviewing two significant

modification applications is the type of arbitrary or unreasonable hardship envisioned by the

Act for the Board to weigh when considering a variance petition. (Ag. Rec. at 6.)

ENVIRONMENTAL IMPACT

Petitioner states that due to the nature of the regulation from which variance is sought

there is no environmental impact expected by grant of variance. (Pet. at 8.) Petitioner

reasons that since the regulation involves the submission of information only, rather than a

deadline for the implementation of any requirements, there will be no environmental impact.

(Pet. at 8.) The Agency states that it “generally concurs” with the qualitative impacts on the

public as alleged by petitioner. (Ag. Rec. at 5.)

CONSISTENCY WITH FEDERAL LAW

Both Land and Lakes and the Agency agree that the grant of variance would not be

inconsistent with the federal laws and regulations. (Pet. at 9, Ag. Rec. at 6.)

AGENCY RECOMMENDATION

The Agency does not oppose the granting of the variance from 35 Ill. Adm. Code

Section 814.104(c), to allow Land and Lakes a six month extension, until September 19, 1996,

to file its significant modification permit application for petitioner’s landfill. (Stip. at 3.) The

Agency states that at the last inspection of the landfill it found no violations. (Ag. Rec. at 2.)

However, the Agency does express a concern that the variance should not be extended

past the September 19, 1996 date. (Ag. Rec. at 5.) The Agency states “despite Petitioner’s

alleged compliance with the requirements of Subtitle D, the Agency has received no

documentation of the Petitioner’s alleged compliance with the requirements in 35 Ill. Adm.

Code 814.302(a) and (b)”. (Ag. Rec. at 5.) The Agency concludes that “[b]ecause the

Agency does not anticipate receiving the documentation prior to the submittal of the significant

modification application, it would be very concerned about any extension of the submittal

deadline beyond the requested deadline in the petition for variance, namely September 18,

1996.” (Ag. Rec. at 5.)

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 regulations at issue would impose an arbitrary or unreasonable hardship. (415 ILCS

5/35(a).) Furthermore, the burden is upon the petitioner to show that its claimed hardship

outweighs the public interest in attaining compliance with regulations designed to protect the

public. (

Willowbrook Motel v. IPCB

(1985), 135 Ill. App.3d 343, 481 N.E.2d 1032.) Only

with such a showing can the claimed hardship rise to the level of arbitrary or unreasonable

hardship. (

We Shred It, Inc. v. IEPA,

(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. Compliance is to be sought regardless of the

hardship which the task of eventual compliance presents an individual polluter. (

Monsanto Co.

v. IPCB

(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 a variance grant, to commit

to a plan which is reasonably calculated to achieve compliance within the term of the 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.)

DISCUSSION

This case is very similar to

USA Waste Services, Inc., v. Illinois Environmental

Protection Agency

, (July 21, 1994), PCB 94-92, where the Board granted a six month variance

from 35 Ill. Adm. Code 814.104(c) while petitioner sought an expansion of its facility.

The

Board stated “[r]equiring USA Waste to file an application prior to completion of the siting

process for its proposed expansion would result in USA Waste subsequently filing a second,

largely duplicative application, and would unnecessarily waste the time and resources of USA

Waste and the Agency”. (

Id.

at 4.) Based on the record, the Board finds that to deny

variance and require immediate compliance with 35 Ill. Adm. Code 814.104(c) (and Land and

Lakes' extended compliance date of March 19, 1996) would impose an arbitrary and

unreasonable hardship on Land and Lakes.

However, unlike the variance relief granted to

USA Waste Services Inc

., here most of

the requested relief is retroactive. As stated above, the Board, absent unusual circumstances,

ordinarily does not grant retroactive relief. In

Atkinson Landfill Company, Inc. v. Illinois

Environmental Protection Agency

, (January 11, 1995), PCB 94-259, the Board found that

petitioner deserved a retroactive variance because it filed the variance petition two days after

the significant modification application was due which showed due diligence and because