£LLJ.F1O.LS
POLLUTiON CONTROL
BOARD
September 21, 1995
COMMUNITY LANDFILL CORPORATION,
)
Petitioner,
V.
)
PCB 95—137
)
(Variance-Land)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
MARX A. LAROSE, MARIA L. VERTUNO, OF GESSLER, HUGHES & SOCOL,
LTD. APPEARED ON BEHALF OF PETITIONER.
KYLE NASH DAVIS OF THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
APPEARED ON BEHALF OF RESPONDENT.
OPINION
AND ORDER
OF THE BOARD (C. T. Girard):
This matter comes before the Board on a petition for
variance from the requirements of 35 Ill. Adm. Code 814.104(c)
filed by Community Landfill Corporation (CLC) on April 26, 1995.
The Illinois Environmental Protection Agency (Agency) filed its
recommendation on May 30, 1995, and CLC filed its response on
June 6, 1995.
The Agency published notice of the petition on May 17, 1995.
CLC waived its right to a public hearing; however, the Board
received a written objection to the variance and written request
for hearing filed June 13, 1995 by Jean Ann Robinson of Grundy
County Office of Solid Waste Management. By its June 15, 1995
order, and pursuant to Section 37(a) of the Illinois
Environmental Protection Act (Act), the Board accepted the June
13, 1995 letter and set the matter for hearing.
Hearing was held before Hearing Officer Deborah Frank on
July 26, 1995 in the City of Morris, County of Grundy, Illinois.
Several members of the public were present. Thereafter, the
Board received CLC’s post-hearing brief on August 8, 1995, the
Agency’s post-hearing brief on August 16, 1995, and CLC’s reply
brief on August 22, 1995. 1
1 Hereinafter, CLC’s petition shall be referred to as (Pet. at
.;
the Agency’s recommendation shall be referred to as (Rec.
at
.);
and CLO’s response shall be referred to as (Reply at
The hearing transcript shall be referred to as (Tr. at
.);
CLCT5
hearing exhibits 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 Agency’s post-hearing brief shall be
CLC is requesting a variance from 35 Ill. Adm. Code
814.104(c), which requires submission of a significant
modification permit application (SMPA) to the Agency. (Pet. at
1.) CLC is seeking retroactive relief from June 15, 1993 until
45 days after the granting of the variance.
The Board’s responsibility in this matter arises from the
Act, wherein the Board is charged with the responsibility to
“grant individual varianc~egb~ynnd th~limitationg pre~c~rib~din
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) (1994).) More generally, the
Board’s responsibility in this matter is based on a 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 functions.
STATUTORY I~NDREGULATORY FRAMEWORK
Section 814.104 dictates that owners or operators of all
existing municipal solid waste landfills permitted pursuant to
Section 21(d) of the Act file a SMPA. The SMPA must demonstrate
how the facility will comply with the operating requirements set
forth in Part 814. Section 814.104(c) provides that a SMPA must
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 Relorting
Requirements for Non-Hazardous Waste Landfills (August 17, 1990),
R88-7 at 21, 114 PCB 503.) In the instant matter, the Agency
requested an earlier deadline of June 15, 1993. (Rec. at
Attachments D and E) CLC asserts that a variance from that
deadline is necessary as Morris and CLC were finalizing
negotiations regarding the operator status of parcels A and B
berore submitting a SMPA. (Pet. at 3.)
In determining whether any variance is to be granted, the
Act compels the Board to consider 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).)
Another 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 or the
hardship which the task of eventual compliance presents an
individual polluter. (Monsanto Co. v. IPCB, 67 Ill.2d 276, 367
referred to as (Agency PHB at .); and CLC1s post-hearing reply
shall be referred to as (PH Reply at
.)
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 a term of the variance.
BACKGROUND
Site Description and Operation
The site at issue in this case is the Morris Community
Landfill in Morris, Illinois. (Pet. at 1.) It is undisputed
that the entire facility is owned by the City of Morris (Morris).
(Pet. at 2; Rec. at 1.) The facility 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,
Parcel A was covered and has remainnd inactive since then.
(Id.)
Parcel B, which is approximately 64 acres in size, is operated by
CLC, as a municipal solid waste landfill and accepts about
590,000 cubic yards of waste per year. (Pet at 5.)
Site Leases and Permits
Morris was issued a Development Permit in 1974 (permit 1974—
22-DE), and an Operating Permit in 1976 (permit number 1974-22-
OP) for the entire 119-acre site. (Agency PHB 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. (Rec. at 3; Attachment A;
permit 1974-22-OP.) This permit named CLC as the operator of the
entire 119-acre site.
(Id.)
From 1987-1989, CLC also applied for and obtained local
landfill siting approval and Agency permits for the expansion of
Parcels A and B. (Pet. Br. at 10.)
In January 1989, Andrews Environmental Engineering, on
behalf of CLC, submitted a Supplemental Permit Application to the
development permit for the vertical expansion of both Parcels A
and B. (Agency Ex. 2.) In the “Introduction” section, the
application stated that
The City of Morris was issued Illinois
Environmental Protection Agency permit 1974-22-OP,
for the operation of thc Morris Community Landfill
on July 30, 1976. This permit was transferred to
Community Landfill Co. on July 20, 1982. The
Community Landfill Co. operates the 119 acre site
under provisions of a lease arrangement with the
City.
(Id.)
However, on June 5, 1989 the Agency issued Supplemental Permit
1989-005-SP 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 is 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 of this permit shall govern
development and operation of the subject site.
(Id.
at 5.)
In August 1992 negotiations began between CLC and Morris
regarding the re—activation and operation of Parcel A. (Pet. at
10.) Negotiations continued until November 1994, at which time
Morris approved an amendment to the contract with CLC, granting
CLC the leasing rights to operate Parcel A, and requiring CLC to
obtain the necessary operating permits for operation of Parcel A
and closure of Parcel B from the Agency. (PH Br. at 7.) A
supplemental operating permit was issued on April 20, 1993 which
indicated that the SMPA for the entire facility was due on June
15, 1993. (Rec. at Attachment E.) CLC stipulates that under
this most recent supplemental permit, it was required to submit a
SMPA no later than June 15, 1993. (PH Br. at 5, Agency Ex.
1(C).) Neither an appeal nor a request for an extension of this
requirement was received by the Agency. (Rec. at 4.)
RELIEF SOUGHT
CLC is seeking a retroactive variance, claiming that a
submission of the SMPA on or before June 15, 1993 would have been
an unreasonable burden because it was not the operator at that
time. (Pet. at 11.) CLC also maintains that submission of a
SMPA on or before June 15, 1993 would have required submission of
a second SMPA once CLC became the operator of Parcel A. (Pet. at
11-12.) CLC asserts that this duplicative effort would have been
costly and unreasonable tor both the Agency and CLC.
(Id.)
CLC
claims that a timely submission of a SMPA for parcels A and B
might even have proved inaccurate if Morris decided not to grant
operator
status
for Parcel A to CLC after June 15, 1993. (Reply
at 3.) However, negotiations were successful and CLC is now the
operator of parcels A and B, and as such, seeks a retroactive
variance from the deadline set forth in Section 814.104(c).
AGENCY RECOMMENDATION
The Agency sets forth several arguments opposing the
requested variance. In its recommendation, the Agency first
asserts that Morris is the owner and CLC the operator of the
entire 119-acre landfill. (Rec. 2—3). To support its position,
the Agency notes that in the 1982 modification of the operating
permit, the Agency granted the right “to Community Landfill
Company to operate a solid waste disposal site consisting of
119.2 acres...”. (Rec. at Attachment A.) As further evidence of
CLC’s operator status, the Agency pointed to CLC’s January 1989
application for supplemental permit, which specifically stated
that “Community Landfill Co. operates the 119 acre site under
provisions of a lease arrangement with the City.” (Agency Ex.
2.)
The Agency also asserted that the 1989 supplemental permit
to the development permit should not be read as an Agency
transfer of operating rights of parcel A arid
B, but simply an
expression of the contractual relationship between CLC and
Morris. (Rec. at 3, footnote.) Therefore, the Agency believes
that CLC always had the duty to submit a SMPA no later than June
15, 1993 as required by Permit No. 1993-066-SP. (Rec. at 4.)
The Agency contends that CLC cannot blame contract negotiations
for missing its deadline.
(Id.)
As its second argument against granting the requested
variance, the Agency placed on record a continuing objection to
CLC’s standing in the present matter. The Agency maintains that
if CLC asserts that it was not the operator of Parcel A as of the
June 15, 1993 deadline, then a necessary party to the action is
missing, namely, Morris, the alleged operator of Parcel A.
(Agency PHB at 15.) The Agency argues that the Board can only
grant variances to those parties bound by compliance to the
Illinois Environmental Protection Act (Act) and the Board’s
regulations. (415 ILCS
5/35(a)~ Agency PHB at 17.) Thus, the
Agency maintains that as of the June 15, 1993 deadline, both
Morris and CLC had the duty to submit a SMPA. Both Morris and
CLC should be parties to a request for a variance from that
deadline according to the Agency’s interpretation.
Third, the Agency argues that CLC did not demonstrate the
mandatory criteria necessary for granting the variance request.
(Agency PHB at 20.) Specifically, the Agency maintains that CLC
did not demonstrate that denial of the requested variance would
result in an “arbitrary or undue hardship”. (Agency PHB at 21.)
Since, according to the Agency, anyone can file a SMPA on behalf
of an owner or operator, CLC cannot use its negotiations with
Morris
as
the reason for non—compliance.
(Id.
at 19—19, 22.)
The Agency also contends that the only hardship suffered by CLC
was self—imposed and purely economic in nature.
(Id.
at 23; Rec.
at 8.) Therefore, the Agency recommends that CLC ‘ s petition .be
b
denied, or, in the alternative, that CLC be granted a variance
only from the date of the final order in this matter. (Rec. at
7.)
Finally, even if a variance was to be granted, the Agency
asserts that it should not be applied retroactively. (Agency PEB
at 12.) The Agency cites to numerous Board decisions2 in support
of its argument that the Board is disinclined to apply variance
rulings retroactively.
(Id.)
Exceptions to this policy are made
only when petitioners have shown extraordinary circumstances, a
factor which the Agency states is not evident in the present
matter.
(Id.)
COMPLIANCE PLAN
CLC has been operating Parcel B of the Morris Community
Landfill pursuant to Operating Permit No. 1974-22-OP and its
amendments since 1982. (Pet. at 7-8.) In addition, CLC claims
that the landfill is in substantial compliance with all Resource
Conservation and Recovery Act Subtitle D requirements, as well as
the Illinois regulations which implement them.
(Id.)
Future compliance plans include filing an application for
significant modification to expand and operate Parcel A and to
close Parcel B “within 45 days after a favorable variance
decision”. (Pet. at 9.) CLC will also prepare and file a
supplemental permit application to modify the developmental
permit for Parcel A to allow operations to continue while the
Agency reviews and acts on the SMPA.
(Id.)
CLC is unaware of
any other course of action that would allow for compliance with
Section 814.104(c).
(Id.
at 11.)
The Agency points out that CLC has been out of compliance
with Section .814.104(c) since June 15, 1993, and believes the
request for variance is CLC’s effort “to create an ‘enforcement
shiela’”. (Rec. at 7)
HARDSHIP
Under Section 814.401(c), CLC is required to file a SMPA by
2 american National Can v. IEPA, PCB 88-203, 102 PCB 215
(August 31, 1989); Minnesota Mining and Manufacturing v. IEPA,
PCB 89—58, 102 PCB 203 (August 31, 1989); Pines Trailer Co. v.
IEPA, PCB 88-10, 90 PCB 485 (June 30, 1988); Bloomington/Normal
Sanitary District v. IEPA, PCB 87-207, 87 PCB 21 (March 10,
1988); Classic Finishing Co. v. IEPA, PCB 84—174, 70 PCB 229
(June 20, 1986); Clliudyo RoLoprinL Co v. IEPA, PCB 84—151, 63 POE
91(February 20, 1985); Deere & Co. v. IEPA, PCB 92-92; Midwest
Solvent Co. v. IEPA, PCB 84—5, 57 PCB 369 (April 5, 1984); Town &
Country Gas & Food Mart v. IEPA, PCB 95-97.
September 18, 1994, unless the Agency specifies an earlier date.
The Agency in this matter set an earlier date of June 15, 1993.
(Rec. at Attachment D.) CLC contends that submitting a SMPA was
impossible until Morris granted CLC the ability to operate Parcel
A. CLC further asserts that the variance would also avoid
wasting the Agency’s resources and time in needlessly reviewing
duplicate applications. (Pet. at 9-10.)
The Agency believes that any hardship that petitioner may
experience would be self—imposed and economic in nature which
does not fall within the category of “arbitrary and unreasonable”
as contemplated by the Act. (Rec. at 5.) The Agency states:
It appears uncontroverted that petitioner knew of its
obligations to comply with the Board’s regulations, and
voluntarily elected to forgo compliance.
. .
Petitioner
chose not to comply.
(Rec. at 5-6.)
ENVIRONMENTAL IMPACT
CLC maintains that during the term of the variance,
continued operations will have no impact on the environment; and
that the variance is consistent with federal law. (Pet. at 10,
12.)
CONSISTENCY WITH FEDERAL LAW
Although agreeing that no issues exist regarding compliance
with federal law, the Agency stated that a 27-month failure to
comply with the filing date created a negative environmental
impact because the Agency was not updated on matters critical to
inspecting the landfill. (Rec. at 7-8.)
DISCUSSION
The Board first notes the issue raised by the Agency
concerning the status of CLC as operator of Parcel A in 1993.
The Board need not make a decision regarding the status of Parcel
A to determine the merits of this case. While the record does
not clearly demonstrate that CLC was the operator for Parcel A in
1993, the record does undisputedly show CLC was the operator of
Parcel B. Regardless of the status of Parcel A, CLC admits it
was responsible for submitting a SMPA by June 15, 1993 for Parcel
B. (P1-I tsr. at 5.)
Next, the Board will address CLC’s request for a retroactive
variance in this case. As the Agency correctly stated in its
post-hearing brief, the Board generally renders variances
effective from the date of the Board order granting the variance.
(Modine Manufacturing CorD. (Modine), PCB 88-25, 124 PCB 163
(July 25, 1991).) The Board has long-held that “one cannot
qualify for a variance simply by ignoring a compliance date and
thereafter applying for a variance” because this behavior “would
lead to the preposterous proposition that the very existence of a
violation is a ground for excusing it.” (Decatur SD, PCB 71-037,
1 PCB 360 (March 22, 1971).) Further, “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, PCB 88—203, 102 PCB 215 (August 31, 1989).
See also
City
of Minonk v. IEPA, PCB 89-140 (April 26, 1990).) It is neither
the intent of the Act, nor the nature of a variance to legitimize
past failure to comply with rules and regulations. (Modine 124
PCB 166—67.)
The Board has on limited occasions granted variances with
retroactive inception dates under special circumstances, which
include: where the delay occurred through no fault of the
petitioner (Allied Signal. Inc.. v. EPA, PCB 88-172, 105 PCB 7,
(November 2, 1989); where there was confusion over an
interpretation of federal rules, and where the Agency changed its
view during the course of the proceeding (Morton Chemical Div. v.
~,
PCB 88-102, 96 PCB 169 (February 23, 1989).) An important
caveat to the “special circumstances” exception is the Board’s
emphasis on the petitioner’s due diligence and timeliness of
filing which are primary factors in considering special
circumstances. (Modine, 124 PCB at 166.)
The 22-month lapse of time between the June 15, 1993 SMPA
deadline and the April 26, 1995 filing of CLC’s variance petition
suggests that the hardship asserted by CLC was self-imposed. The
Board also observes that CLC did not attempt to seek an extension
of the deadline for filing a SNPA which further persuades the
Board that CLC is suffering a self-imposed hardship. CLC and
Morris received a letter from the Agency in October of 1992 which
inalcatea that the SMPA clealline was June 15, 1993. (Rec. at
Attachment D.) This was followed by a supplemental operating
permit in April of 1993 which also indicated that the SMPA was
due by June 15, 1993. 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, which the Board
has consistently found to be an inappropriate use of the variance
process. (Sauget v. IEPA, PCB 88-18, 93 PCB 283 (November 3,
1988); Quaker Oat v. IEPA, PCB 83-107, 57 PCB 370 (January 12,
1984).)
CLC attempts to analogize its situation to the one in
Atkinson Landfill Company, Inc. v. IEPA, PCB 94-250 (January 11,
1995). However, the Board finds important distinctions between
the instant case and the circumstances that led the Board to
grant a variance to the Atkinson Landfill Company, Inc.
(Atkinson). First, Atkinson filed its request for variance two
days after the September 18, 1994 deadline for significant
modification applications, thus demonstrating due diligence.
(Atkinson at 1.) CLC filed its request on April 26, 1995, over
27 months past the deadline. (Pet. at 1.) CLC attempts to rely
on the completion of lease negotiations to explain the lateness
of its filing. However, the record clearly demonstrates CLC’s
intent to use Parcel A in the late l980s. In fact, the record
contains evidence that CLC applied for and obtained local siting
approval and Agency permits for the expansion of Parcel A in the
1987-1989. (Pet. at 10.) The local siting process is a lengthy,
expensive process and shows that CLC made an extensive investment
in the possible operation of Parcel A well before the 1993
deadline to submit the SMPA.
Secondly, Atkinson sought a 16-month variance while Atkinson
was negotiating and applying for the necessary permits and siting
approvals. CLC requests a 27—month variance from the Agency—
imposed June 15, 1993, SMPA deadline, only after
the completion
of negotiations and then cites those same negotiations as the
reason a variance is needed. The Board thus believes that CLC’s
lack of due diligence and late filing are significant
distinguishing features of the present case which justify a
denial of the requested variance. Indeed, CLC’s situation is
remarkably similar to those cases in which we denied retràactive
application of a variance because of lethargic attempts at
compliance: the filing of a variance petition to avoid
enforcement; and a late filing of the petition. (See Quaker Oat,
PCB 83—107, 57 PCB 370 (January 12, 1984); Hansen STE, PCB 83—
240, 62 PCB 389 (January 24, 1985).) Therefore, after carefully
weighing the record in this case, and past Board precedent, the
Board finds that a retroactive variance in this case is not.
warranted.
The Board further finds that CLC has failed to establish
that a hardship exists which would warrant variance relief.
CLC’s asserted hardship was that it would have been forced to
file a SMPA for parcel B and then later file a subsequent and
superseding SMPA for both parcels. (Pet. at 11.) CLC stated
that this course of action would have ~substantial1y increased
engineering fees, would have wasted the time and effort of. CLC
and its engineers~and would have taken additional resources of
the Agency. (Pet. at 11-12.) However, because CLC chose to
ignore the June 15, 1993, deadline, only one SMPA is now
necessary and, thus, the stated hardship no longer exists.
Further, the Board notes that the record indicates that in
the late 1980’s CLC had received approval for expansion of Parcel
A. (Pet.
at 10.)
This conclusively indicates that CLC
was
planning to operate Parcel A. Therefore CLC was in a position to
know that it would need to submit a SNPA for both parcels prior
to June 15, 1993. CLC chose not to ask for an extension of time
II
to file the SMPA in a timely manner. Thus, the Board finds that
any hardship which may now exist is self—imposed. (See Decatur
SD, PCB 71-037, 1 PCB 360 (March 22, 1971); American National Can
Co. v. EPA, PCB 88-203, 102 PCB 215 (August 31, 1989); and City
of Minonk v. IEPA, PCB 89-140 (April 26, 1990).)
For the foregoing reasons, the Board is unpersuaded that the
variance in this matter is warranted. Therefore, the Board
denies the variance..
CONCLUSION
Based upon the record, the Board finds that CLC has not
demonstrated that an arbitrary and unreasonable hardship exists
which warrants the granting of a variance in this matter.
Therefore, the Board denies CLC’s request for variance
This opinion constitutes the Board’s findings of fact and
conclusions of law in
this matter.
ORDER
Community Landfill Corporation (CLC) request for variance is
hereby denied.
Board Member J. Theodore Meyer dissents.
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 Rule of the
Supreme Court of Illinois establish filing requirements.
(See
also
35 Ill. Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy Gunn, Clerk
of
the Illinois Pollution Control
Board, hereby certify that the a1~,#.reppinion and order was
adopted on the ~
day of
_____________,
1995, by a vote of
Dorothy M./~unn,
A
Clerk
Illinois ~Ø11ution Control Board
