ILLINOIS POLLUTION CONTROL BOARD

January 11,

1995

ATKINSON

LANDFILL

COMPANY,

 INC.,

Petitioner,

v.

)

 PCB 94—259

(Variance)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

LEE

CUNNINGHAM,

GARDNER,

CARTON

&

DOUGLAS

APPEARED

BEHALF

PETITIONER;

JOHN J. KIM

APPEARED

BEHALF

OF RESPONDENT.

OPINION

AND

ORDER

OF THE

BOARD

 (by R.C.

 Flemal):

This matter comes before the Board upon a petition for

variance filed by Atkinson Landfill Company, Inc.

 (ALC)

on

September 20,

 1994.

 ALC requests an extension of time from the

requirement that it file an application for significant

modification of the operating permit’ for Henry County Landfill

#2

 (Landfill #2).

 The request is for the period from September

18,

 1994 to January 18,

 1996.

The Board’s responsibility in this matter arises from the

Environmental Protection Act

 (Act)

 (415 ILCS

5/i.

et seq.

 (1992).)

The Board is charged there with the responsibility of granting

variance from Board regulations whenever it is found that

immediate compliance with the regulations would impose an

arbitrary or unreasonable hardship upon the petitioner.

 (415

ILCS 5/35(a).)

 The Illinois Environmental Protection Agency

(Agency)

 is required to appear in hearings on variance petitions.

(415 ILCS 5/4 (f).)

 The Agency is also charged, among other

matters, with the responsibility of investigating each variance

petition and making a recommendation to the Board as to the

disposition of the petition.

 (415 ILCS 5/37(a).)

ALC’s September 20,

 1994 petition contained a waiver of

hearing request.

 On October 13,

 1994 Carolyn Van Opdorp filed

with the Board a written objection to grant of variance.

Responding to the objection, the Board exercised its discretion

pursuant to Section 37(a)

 of the Act

 (415 ILCS 537(a)) and by

The requirement is found in the Board’s solid waste

management regulations at 35 Ill.

 Adin.

 Code 814.104(c).

2

Board order of October 20, 1994 set the matter for public

hearing.

 The public hearing was held on December 9,

 1994 in

Cambridge,

 Illinois.

 The parties and members of the public

attended the hearing.

The Agency filed its recommendation and response to petition

 for variance on October 20,

 1994,

 recommending that the variance

be granted with reservation.

ALC

seeks a sixteen—month 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

their permits for existing municipal solid waste landfill units.

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).

ALC’s Landfill #2 is permitted pursuant to Section 21(d)

 of the

Act and is therefore subject to the Section 814.104(c)

 deadline.

For the reasons set forth below, we grant the requested

variance.

BACKGROUND

Landfill #2 is located on a site of approximately 31.2

acres,

 1200 feet east of Atkinson Road and immediately north of

U.S. Route 80,

 in the NW 1/4 of section 2 T16N R4E 4th P.M.

(Pet.

 at 2.)2

 Landfill #2 is surrounded by unreclaimed strip

mines and a variety of other land uses including agricultural and

light commercial lands; a trailer park and a few homes which are

located within one-half mile of the landfill.

(u.)

Landfill #2 was originally owned by the City of Atkinson and

began operations as a municipal solid waste landfill in 1980.

ALC

purchased Landfill #2 and approximately one hundred adjoining

acres in 1992.

 (Pet.

 at 2.)

 Landfill #2 remains permitted to

receive municipal solid waste and accepts between 200 and 300

cubic yards per day or between 73,000 and 109,500 gate cubic

yards per year of waste.

(~.)

 As of the date of filing of the

petition,

ALC

claimed that Landfill #2 was expected to reach its

currently permitted capacity as early as January

1,

 1995.

(u.)

2

 Petitioner Atkinson Landfill Company, Inc.’s petition is

cited in the form “Pet.

 at x.”; citation to the recommendation

submitted by the Agency is in the form “Rec.

 at x.”; and citation

to the hearing transcript is in the form “Tr. at x.”.

3

However, ALC believes through reconfiguration of Landfill #2 that

the life of the permitted site could be extended.

(u.)

Accordingly,

ALC

hopes to expand Landfill #2 both

horizontally and vertically.

 (Pet. at 2.)

 Local siting

approval3, pursuant to Section 39.2 of the Act (415 ILCS 5/39.2),

will be necessary before a permit for this expansion can be

 granted.

As of the date of filing of the petition,

ALC

indicated that

it intended to file the siting approval request in November or

December 1994.

 (Pet at 2.)

 However, there is no indication in

the hearing record that the siting approval request had been

filed as of the date of hearing (December 9,

 1994),

 apparently

due to delay in ALC’s obtaining annexation of the necessary

lands.

 (Tr. at 17.)

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

regulation at issue would pose an arbitrary or unreasonable

hardship.

 (415 ILCS 5/35(a)

 (1994).)

 Furthermore, the burden is

on petitioner to show that its claimed hardship outweighs the

public interest in attaining immediate compliance with

regulations designed to protect the public.

 (Willowbrook Motel

v. Pollution Control Board

 (1st Dist.

 1977),

 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.

Illinois Environmental Protection Agency

(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, and compliance is to be sought regardless of the

hardship which the task of eventual compliance presents an

individual polluter.

 (Monsanto Co.

 v. Pollution Control Board

(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 the grant of a variance, to commit to a plan

which is reasonably calculated to achieve compliance within the

term of the variance.

~

 This siting approval process is commonly known as the

“SB—172” process after the Senate Bill in which it was originally

promulgated.

4

HARDSHIP

Pursuant to the Board regulations at 35

 Ill. Adm. Code

814.104(c),

ALC

was required to file its application for

significant modification by September 18,

 1994.

 It is from this

requirement that

ALC

seeks variance.

 The purpose of the variance

is to allow

ALC

to obtain approval for an expanded facility prior

to filing the significant modification application.

 (Pet.

 at 4.)

ALC

claims that unforeseen ownership complications which

arose regarding the annexation of the surrounding properties have

delayed its ability to proceed with the necessary local site

approval process.

 (Pet.

 at 4.)

 According to ALC, when it

purchased the landfill and the surrounding properties in November

1992, the existing landfill site was permitted for development,

but only a portion of the site was permitted for operation.

(~.)

 Additionally, the existing landfill site was located

within the corporate limits, while the surrounding property was

located in unincorporated Henry County.

(a.)

ALC

and the City

of Atkinson

 (City)

 contemplated various annexations to the City

and subsequent expansions, vertically and horizontally, of the

landfill.

(u.)

 According to ALC,

 it was these unforeseen

complications in the annexation of the properties which have

delayed the ability to proceed with the necessary local site

approval process.

(u.)

ALC

claims it therefore has been

delayed in making a complete application for significant

modification.

(u.)

 However,

ALC

believes that the City is now

prepared to proceed with and complete the annexation, enabling

ALC

to complete an application for local siting approval for the

proposed expansion by early 1995.

 (Pet. at 4,5; Tr. at 17.)

ALC

seeks a sixteen—month

 (16) variance from the September

18,

 1994 filing deadline in order to allow it to complete the

siting process for the proposed expansion prior to filing its

application for significant modification, thus avoiding the

duplicative efforts of filing a second application.

ALC

asserts

that the variance would also avoid wasting the Agency’s resources

and time in needlessly reviewing a second application that would

become wholly obsolete upon the filing of the significant

modification application for the expanded facility.

 (Pet. at 5.)

The Agency acknowledges the duplicative nature of potentially

filing two significant modification applications pursuant to 35

Ill. Adm. Code 814.104(c)

 and 814.201 for the same facility

depending upon the local government’s decision in reviewing ALC’s

application for local siting approval.

 (Rec.

 at 3.)

 The Agency

also recognizes the arduous task imposed on both the petitioner

and the Agency in preparing and reviewing the two applications

which would ultimately serve the same purpose.

(u.)

5

CONSISTENCY WITH FEDERAL LAW; ENVIRONMENTAL IMPACT

ALC

asserts that its existing Landfill #2 is in substantial

compliance with all Resource Conservation and Recovery Act

Subtitle D requirements as set forth in 40 C.F.R. Part 258, as

well as with the Illinois regulations implementing them.

 (Pet.

at 3.)

 Supporting this assertion is the Agency’s issuance to ALC

 of Interim Permit #1993—425-IN on October

1,

 1993 for the

existing Landfill #2.

(u.)

Additionally,

ALC

asserts that the variance will have no

adverse environmental impact,

 since it seeks only a variance from

the deadline for the submission of information rather than a

deadline for the implementation of any requirements.

 (Pet.

at

5.)

ALC

contends that it is committed to upgrading operations at

the site relative to practices used prior to ALC’s purchase of

the site.

(~.

 at 5,

6.)

 The Agency agrees that the variance

requested by

ALC

would not be inconsistent with applicable

federal law.

 (Rec. at 4.)

AGENCY RECOMMENDATION

The Agency believes that the time period requested by

petitioner, from September 18,

 1994 to January 18,

 1996,

is

necessary and commensurate with the steps yet to be taken

regarding application for local siting approval.

 (Rec.

 at 4.)

The Agency conditions that belief and its recommendation with the

position that ALC’s facility has experienced compliance

difficulties in the past.

(u.)

 These difficulties have

resulted,

 inter alia,

 in the issuance of several administrative

citations to ALC.

(~.)

 However, the Agency acknowledges that

 the extension of time requested,

 sixteen months,

 is necessary.

(u.)

 The Agency asserts that its “position is not tantamount to

approval of ALC’s petition,

 it also is not an objection to the

relief requested” by ALC

(a.).

 Therefore the Agency recommends,

with reservation, that

ALC

be granted a variance from Section

814.104(c)

 for a period of sixteen months commencing on September

18,

 1994.

(I~.)

PUBLIC PARTICIPATION

The hearing in this matter was attended by members of the

public who posed questions and offered statements for the record.

(See Tr.

 at 29—40.)

 Among concerns raised were whether the

facility had a licensed operator and why that operator could pick

up trash on Monday and Fridays mornings and not be at the

landfill.

 (Tr. at 25.)

 The commenters suggested that there was

an inadequate amount of time to respond to the Agency’s

publication of the legal notice in the local newspaper.

 (Tr. at

26.)

 A question of what specific violations were incurred at the

landfill prior to ALC’s taking over the facility was raised.

(Tr. at 26.)

 The commenters stated that the City had already

6

denied the annexation request earlier in the week before the

hearing.

 (Tr.

 at 27.)

Finally, the commenters expressed concern that the

landfill’s proximity to wetlands,

 small ponds,

 and larger lakes

makes such a long time period,

 16 months, too long to project if

anything would go wrong in the environment.

 (Tr. at 40.)

 They

are especially concerned that the Board consider the landfill’s

proximity to the surrounding wildlife and land.

CONCLUSION

The Board will grant ALC a variance from 35 Ill. Adm.

814.104(c) for a period of sixteen months, from September 18,

1994 to January 18,

 1996.

 Based upon the record, the Board finds

that requiring

ALC

to comply with the Section 814.104(c)

 deadline

for filing its application for significant modification of

Landfill #2 would impose an arbitrary or unreasonable hardship on

ALC.

 The Board finds that the granting of the variance will not

result in an adverse impact on the environment.

As discussed above,

 a variance is a temporary reprieve from

the Board’s regulations for which a petitioner agrees to commit

to a plan to achieve compliance within the term of the variance.

ALC

has agreed to submit a complete permit application, known as

an application for significant permit modification, satisfying

Section 830.104 and thereby demonstrating compliance with Section

830,302 upon expiration of the variance.

Requiring

ALC

to file an application prior to completion of

 the siting process for its proposed expansion would result in ALC

subsequently filing a second, largely duplicative application,

and would unnecessarily waste the time and resources of ALC and

the Agency.

 ALC accordingly will be granted the requested

sixteen-month variance from the deadline set forth in 35 Ill.

Adnt. Code 814.104(c).

ALC

will now have until January 18,

1996

to file its application for significant modification,

 at which

time it must demonstrate facility—wide compliance with Section

814.302.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

Atkinson Landfill #2 Company,

 Inc.

 (ALC)

 is hereby granted a

variance from 35 Ill.

Adm.

Code 814.104(c).

 This variance

commences on September 18,

 1994 and terminates on January 18,

1996.

IT IS SO ORDERED.

7

Petitioner

chooses

this

variance

subject

the

above

order,

within

days

the

date

this

order

Petitioner

shall

execute

and

forward

to:

John

Kim

Division

Legal

Counsel

Illinois

Environmental

Protection

Agency

2200

Churchill

Road

Post

Office

Box

19276

Springfield, Illinois 62794—9276

a Certification of Acceptance and Agreement to be bound to all

terms

and

conditions

this

variance.

The

45-day

period

shall

held

abeyance

during

any

period

that

this

matter

being

appealed.

Failure

execute

and

forward

the

Certificate

within

days

renders

this

variance

void

and

force

and

effect

shield

against

enforcement

rules

from

which

variance

was

granted.

The

form

said

Certification

follows:

CERTIFICATION

(We),

hereby

and

agree

bound

all

terms

and

conditions

the

order

the

Pollution

Control

Board

PCB

94-259,

January 11,

 1995.

Petitioner

Authorized

Agent

Title

Date

Section 41 of the Environmental Protection Act

 (415 ILCS

5/41

(1992))

provides

for

the

appeal

final

Board

orders

within

35 days of the date of service of this order.

 The Rules of the

Supreme

Court

Illinois

establish

filing

requirements.

(See

also

Ill.

Adm.

Code

101.246

“Motions

for

Reconsideration”.)

8

Dorothy

Gunn,

Clerk

the

Illinois

Pollution

Control

Board,

hereby

certifI

that

the

above

inion

and

order

was

adopted

the

//~

 day of

_____________________,

1995

vote

of

_________________.

~Dorothy

 M. ,4unn, Clerk

Illinois P~lutionControl Board