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.b’Ui.~.LU.L.LUF1
LL’N’.LKUL~
~UAk(L.J
September 21,
1995
COMMUNITY LANDFILL CORPORATION,
)
Petitioner,
v.
)
PCB 95—137
(Variance-Land)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AtENCY
Respondent.
DISSENTING OPINION
(by J. Theodore Meyer):
I respectfully dissent from the majority opinion in this
matter.
The unreasonable hardship experienced by Community
Landfill Corporation
(CLC)
outweighs the negligible environmental
impact in this case; therefore,
I would have granted CLC a 45-day
prospective variance.
Relief Reauested
CLC requested a variance from the requirements of 35 Iii.
Adin.
Code 814. 104(c).
(Pet.
at
1.
)‘
Section 814.104(c)
requires
a significant modification application to be filed within 48
months of the September 1990 effective date,
i.e. by September
18,
1994, unless the Agency requests an earlier date.
(In the
Matter of:
Development, Operating and Reporting Requirements for
Non—Hazardous Waste Landfills (August 17,
1990), R88—7 at 21, 114
PCB 503.)
In the instant matter, the Illinois Environmental
Protection Agency
(Agency) requested an earlier deadline of June
15,
1993.
CLC needed a variance from that deadline so that the
City of Morris
(Morris) and CLC could finalize the operator
status of the landfill and sign a new lease before submitting a
significant modification application.
(Pet.
at 3)
Site Description and Operation
The Morris Community Landfill consists of two parcels:
Parcel A to the east of Ashley Road and Parcel B to the west of
Ashley Road.
(Pet.
at
1,
Exhibit A.)
Parcel A is approximately
55 acres in size and was used by Morris as
a municipal’ solid
waste landfill until June 1980..
(PH
Br.
at 2.)
At that time,
1Hereinafter,
CLC’s petition shall be referred to
as
(Pet.
at
.);
the
Agency’s recommendation shall be referred to as
(Rec. at
.);
and CLC’s
response shall be referred to as (Reply at
.)
.
The hea~ingtranscript shall
be referred to as
(Tr. at
_.~
CLC’s hearT~igexhibits
shall be referred to
as (CLC
Ex.
.);
and the Agency’s hearing exhibits shall be referred to as
(Agency Ex.
.).
CLC’s post-hearing brief shall be referred to as
(PH Br.
at
.);
the A~ncy’s post-hearing brief shall be referred to as
(Agency PHB at
.)
;
and CLC’s post—hearing reply shall be referred to as
(PH Reply at
.)
Parcel A was covered and has remained inactive since then.
(Id.)
Parcel B, which is approximately 64 acres in size,
is operated as
a municipal solid waste landfill and accepts about 590,000 cubic
yards of waste per year.
(I..~)
Site Leases and Permits
Morris was issued a Development Permit in 1974,
and an
Operating Permit in 1976 for the entire 119-acre site.
(Pet.
PH
at 4—5.)
In 1982, Morris leased the operating rights of Parcel B
to CLC
.
(Tr.
at 143; CLC Ex.6(A).).
Also in 1982,
CLC obtained
from the Agency a modification of the landfill’s operating permit
to reflect this transfer of operator rights to CLC; however, this
permit named CLC as the operator of the entire 119-acre site.
(Rec.
at
3; Attachment A.)
Despite the Agency’s mischaracterization, from 1982 to the
present, CLC operated Parcel B of the landfill while Morris
operated Parcel A.
(Pet.
at
2..)
In January 1989,
Andrews
Environmental Engineering, on behalf of CLC,
submitted a
Supplemental Permit Application to the development permit for the
vertical expansion of the landfill.
(Agency Ex. 2.)
On June 5,
1989 the Agency issued Supplemental Permit 1989-005 which
recorded the ownership and operational status of the site in the
special conditions section as follows:
1.
This permit is for vertical expansion of both Parcel A
and B.
The City of Morris is the owner and operator of
Parcel A, and the owner of Parcel B.
The Community
Landfill Corporation js the operator of Parcel B.
(CLC Ex. 6(B).)
The supplemental permit further stated:
22.
In case of conflict between the application and
the plans submitted and these special conditions,
the special conditions
or this permit shall govern
development and operation of the subject site.
~
at 5.)
Lease Neciotiations
In August 1992 negotiations began between CLC and Morris
regarding the renewal of CLC’s lease, and specifically, the re-
activation and operation of Parcel A due to the anticipated
closing of Parcel B.
(Pet.
at 10.)
At hearing Mayor Feeney and
City Engineer Richard Schweickert described the complex issues at
stake during these negotiations.
Since CLC began operating
Parcel B
the citizens of Morris have enjoyed many benefits,
including: no charge for accepting construction and demolition
materials;
free trash pick—up and recycling; royalties in excess
of $1,249,150; tax receipts totaling over $723,107; road and park
.5
improvements donated by CLC;
and, free assistance with snow
removal.
(Tr.
at 152,
194—96,
201—04, PH Br.
at
3.)
If Morris
failed to renew the lease with CLC, Morris Community Landfill
would probably be closed and the citizens of Morris would lose
these benefits.
Negotiations continued until November 1994,
at which time
Morris approved an amendment to the contract with CLC which
granted
CLC the
leasing rights to operate Parcel
A,
and required
CLC to obtain from the Agency the necessary operating permits for
operation of Parcel A and closure of Parcel B.
(PH Br. at 7.)
Therefore, not until November 1994 were the rights to Parcel A
conferred upon by the landowner, Morris, to CLC.
Unreasonable Hardshin: Environmental Harm
In reviewing the record,
it is clear that the Agency’s
change in position as to the operator’s identity for each parcel
of the landfill caused some of the hardship experienced by CLC.
As mentioned, the Agency gave CLC operator status to the entire
119—acre landfill site in the 1982 operating permit, despite the
fact that Morris leased to CLC only the operating rights of
Parcel B.
(Rec.
at
3,
Pet.
at
2.)
Yet,
in 1989,
in the special
conditions section of a supplemental permit, the Agency described
CLC as being the operator of Parcel B only,
an apparent change in
position.
(Rec.
at Ex.
B.)
Realizing that this language is
found in a supplemental permit to the development permit, not the
operating permit,
I nevertheless believe that CLC was justified
in thinking that it was the operator of Parcel B only.
Under the assumption that it was not the operator of parcel
A, in 1982 CLC beqan neqotiatinq with Morris to renew its lease.
(PH Br.
at 6.)
Negotiations were complicated and continued for
over 2 years.
(~)
It would have been an unreasonable burden
for CLC to submit a significant modification application by the
June 15, 1993 deadline, before knowing whether or not it had the
city’s permission to operate Parcel A.
Although, as the Agency
mentioned,
anyone can apply for significant modification, that
“anyone” must have some nexus with the landfill owner or
operator.
CLC did not have a connection to Parcel A until Morris
granted it permission to operate Parcel A.
Also, CLC would have had to submit 2 substantially similar
applications had it met the deadline.
As mentioned in previous
Board cases, requiring a petitioner to submit duplicative
significant modification applications presents an unreasonable
hardship.
(Atkinson Landfill Com~anv, Inc.
v.
IEPA, January 11,
1995,
PCB
94-259; Envirite Cornoration, d/b/a County
Environmental of Livingston v.
IEPA,
(August
11,
1994)
PCB 94-
161; Macon County Landfill v.
IEPA,
(August 11,
1994)
PCB 94-158;
USA Waste Services,
Inc.
v.
IEPA.,
(July 21,
1994) PCB 94-92.)
Therefore, based on the Agency’s apparent change in position as
‘1
to the operator identity of Parcel A, and CLC’s subsequent
reliance on the Agency’s change in position,
it is reasonable
that CLC believed it had to obtain Morris’ permission to operate
Parcel A before submitting a significant modification
application.
Requiring CLC to submit a significant modification
application ror both parcels or Morris Community Landfill on or
before the June 15, 1993 deadline would have been impossible and
therefore imposed an unreasonable hardship on CLC.
I also find that the delay in compliance resulted in little
potential for environmental harm because Parcel A was inactive
during the time period in question.
(CLC PHB at 2.)
Therefore,
since the hardship experienced by CLC, the City of
Morris and the citizens of Morris, outweighs any negligible
environmental harm,
I find that a variance should be granted in
this matter.
Retroactive Variance Relief
I agree with the majority in denying CLC a variance that
would apply retroactively to June
15,
1993.
“~The
Board is
inclined not to grant retroactive relief, absent a showing of
unavoidable circumstances, because the failure to request relief
in a timely manner is a self-imposed hardship.”
(American
National Can Co. v.
EPA,
(August 31,
1989)
PCB 88—203,
102 PCB
215.)
If a party can only demonstrate that compliance would have
been difficult,
it has not plead a sufficient basis upon which to
grant relief.
(Marathon Oil Co.
v.
IEPA and IPCB,
242 Ill.App.3d
200,
610 N.E.2d 789
(5th Dist.
1993).)
Although the Board has granted variances with retroactive
inception dates under special circumstances,
including delays due
though no fault of the petitioner, or where the Agency changed
its view during the course of the proceeding,
an important
distinction in these cases was the petitioner’s due diligence and
timeliness of filing.
(Allied Signal,
Inc.
v.
EPA,
(November
2,
1989) PCB 88—172,
105 PCB 7); Morton Chemical Div.
v.
EPA,
(February 23,
1989) PCB 88—102,
96 PCB 169.)
Here, the Agency’s change in position as to the identity of
the operator of Parcel definitely factored into CLC’s non-
compliance with the significant modification application
deadline.
This confusion was not the exclusive fault of CLC.
However, a 22-month lapse of time between June 15,
1993 and April
26,
1995, the filing of CLC’s variance petition, suggests that
some of the hardship asserted by CLC was self-imposed.
I am also
perplexed by the lack of an attempt to seek an extension of the
deadline.
By an Agency letter dated March 15,
1993, Morris was
alerted
to
the
fact
that the Agency did not consider it
to
be
the
operator of parcel A, the assumption both Morris and CLC were
working under during negotiations.
Thus,
CLC had two months in
which to file an extension of the significant modification
deadline in order to clarify the issue, yet none was filed.
This
inactivity denotes a lack of due diligence or good faith effort
in complying with the regulations.
CLC’s late filing of a
petition for variance can also be read as an attempt to obtain a
shield from enforcement,
an act the Board abhors.
Finally,
deference must be given to the Agency’s recommended denial of the
variance in this matter.
Therefore,
I believe that, although a
retroactive application of the variance in this matter is not
warranted,
CLC
should
have been given a variance
until November
6, 1995 to submit its significant modification application.
For these reasons,
I respectfully dissent.
J.
eodore Meyer
Board Member
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that
he above dissenting opinion was filed
on the
~
day of
,
):.5
~
Dorothy
unn, Clerk
Illinoi
P ilution Control Board
