ILLINOIS POLLUTION CONTROL BOARD
October 6, 1994
WASTE MANAGEMENT OF
)
ILLINOIS, INC.,
Petitioner,
)
v.
)
PCB 94—212
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
On August 5, 1994, Waste Management of Illinois, Inc. (WMII)
filed a petition for a six-month variance from the Illinois
Pollution Control Board’s (Board) requirements that WMII file a
permit application demonstrating compliance with the operating
requirements of 35 Iii. Adm. Code. 814 by September 18, 1994. On
August 23, 1994, the Illinois Environmental Protection Agency
(Agency) filed its recommendation that the variance be granted.
On September 13, 1994, the City of Geneva filed a petition to
intervene, and additionally filed a motion to incorporate the
record in PCB 94-58, City of Geneva v. Kane County et al. WHII
filed its response on September 23, 1994 and on October 3, 1994,
the City of Geneva filed a motion for leave to file a reply to
WNII’s response along with the reply.
No hearing in this matter has been held, nor has the Board
received a request for a hearing or an objection to our granting
the variance pursuant to 35 111. Adm. Code 104.141. For reasons
more fully set forth below, we grant the six—month variance as
requested by WMII and deny both the City of Geneva’s petition for
intervention and the motion to incorporate the record of PCB 94—
58. We will however, allow the City’s motion for leave to file a
reply.
PROCEDURAL MATTERS AND BACKGROUND
Our review of the City of Geneva’s petition for intervention
is governed by our procedural rule standard found in 35 Ill. Adm.
Code 103.142. The City may intervene if it can show either that
the City is so situated that it may be adversely affected by a
final order of the Board, or that the City’s claim or defense
involves a common question of law for fact with the instant
variance proceeding.
In this proceeding, WNII is seeking a six—month variance
from the permit application filing requirement of 35 Ill. Adm.
Code 814.104(c). Section 814.104 requires owners or operators of
2
Subpart “C” facilities which are existing units accepting
chemical and putrescible wastes that will remain open for more
than seven years beyond September 18, 1990, and are permitted
pursuant to Section 21(d) of the Environmental Protection Act
(415 ILCS 5/21(d), to file an application for significant
modification of existing municipal solid waste landfill units.
Section 814.104(c) requires that the application be filed within
48 months of the September 1990 effective date of Part 814, or by
September 18, 1994.
As the operator, WMII is required under this regulatory
provision to submit a permit application for the existing portion
of Settler’s Hill Recycling and Disposal Facility in Kane County,
Illinois (Settler’s Hill). Having received site location
suitability approval from Kane County for an expansion of
Settler’s Hill Landfill, which the Board recently affirmed in
City of Geneva v. Kane County, at al. (July 21, 1994) PCB 94—58,
WMII is additionally required to file an operating permit
application regarding the approved expansion. In order to avoid
undertaking duplicative efforts, WNII is seeking the instant six—
month variance.
Geneva does not object to the Board’s granting a variance;
instead, Geneva seeks to be an intervenor in order to argue that
the time requested by WHII is too short. Regarding the issue of
common question of law or fact, the City argues that it meets
this part of the intervention standard because Geneva allegedly
has jurisdiction over the siting of Settler’s Hill Landfill.’ We
find there is no common question of law or fact between the
City’s claim and this variance proceeding. Geneva is essentially
seeking to obtain a declaratory judgment from the Board that WMII
management must file an application for local siting approval
from the City of Geneva. Whether WMII will receive an operating
permit from the Agency without having sought and been granted
local siting approval from the City of Geneva is still an open
question. We declined to make such a determination on July 21,
1994 in City of Geneva v. Kane County, at al., PCB 94-58. We are
declining again today to make that determination with regard to
the City’s motion for reconsideration of our final decision in
1The issue of the City’s concurrent jurisdiction was recently addressed
in City of Geneva v. Kane County, at al. (July 21, 1994) PCB 94—58, wherein
we upheld Kane County’s siting approval, and additionally found that we had no
authority at this stage of the proceedings to require WNII to seek site
location suitability approval from Geneva, despite the City’s claim that it
shares concurrent jurisdiction with Kane County. We found that pursuant to
Section 39(c), it was within the initial jurisdiction of the Agency, rather
than the Board’s, to determine whether WMII had obtained all the necessary
local siting authority approval prior to submitting an operating permit
application.
3
PCB 94—58, and we decline to make that determination in this
context. This variance proceeding is not the proper forum to
determine Geneva’s jurisdiction over the local siting of a
landfill expansion. The sole issue pending in this matter is
whether we will grant WMII’s request for additional time to
satisfy the Board’s regulatory permit requirements, a request to
which Geneva does not object.
Geneva also claims it will be adversely affected by a final
decision of the Board if we merely granted a variance for a six—
month period because there would be inadequate time for WMII to
seek site location suitability approval from the City of Geneva
prior to WMII filing its permit application with the Agency.
Geneva believes the local siting process would take more than a
year. We find that Geneva is not so situated to be adversely
affected by a final order of this Board. Geneva has not
demonstrated any harm resulting from our granting a six-month
variance. In the event that WHII should submit a local siting
approval application to the City of Geneva, it is WMII who would
be harmed by that process not being completed prior to the
expiration of the six—month extension, and not Geneva. If, for
some reason, WMII is in need of additional time in which to file
a permit application, WMII can seek another variance upon a
proper showing. (35 Ill. Adm. Code 104.123.) For these reasons,
we find that the City of Geneva has not met the standard for
granting intervention and deny both the City of Geneva’s petition
for intervention and the motion to incorporate the record of PCB
94—58
~2
STATUTORY FRAMEWORK
With regard to the variance proceeding, the Board’s
responsibility in this matter arises from the Environmental
Protection Act (“Act”). (415 ILCS 5/1 et seq. (1992).) The Board
is charged with the responsibility of granting variances from
Board regulations whenever it is found that compliance with the
regulations would impose an arbitrary or unreasonable hardship
upon the petitioner. (415 ILCS 5/35(a).) The Agency is required
to appear in hearings on variance petitions. (415 ILCS 5/4(f).)
The Agency is also charged, among other things, 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).)
In determining whether any variance is to be granted, the
2At the pctober 6, 1994 meeting of the Board, a separate vote was taken
on the city of Geneva’s petition for intervention. The vote was 3 to 3;
therefore, the petition is deemed denied for failing to receive the majority
vote of the Board. However, the three members who would have granted
intervention concur in the grant of this variance.
4
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) (1992).) Furthermore, the burden is
on petitioner to show that its claimed hardship outweighs the
public interest in attaining 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 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.
HARDSHIP
Under Section 814.104(c), WMII is required to file an
application for significant modification by September 18, 1994.
Upon completion of the siting process for the proposed expansion,
WHII is required to re—file its application for significant
modification, incorporating the changes resulting from the
expansion. WNII seeks a six—month variance from the September
18, 1994 filing deadline in order to avoid filing a piecemeal
application, and duplicative efforts.
Each owner or operator must file an application for a
significant modification for existing units demonstrating
compliance with current and new Illinois Solid Waste Regulations
by September 18, 1994. (~g 35 Ill. Adm. Code Section 814.104(b)
and (c) and Section 814.302.) As it exists now, Settler’s Hill
Landfill is approximately 291 acres and is currently designed and
permitted to accept municipal solid waste, demolition and
construction wastes and special waste. It accepts between 3000
and 4000 gate cubic yards of waste per day. From April 1, 1993
through March 31, 1994, Settler’s Hill accepted 1,044,218 cubic
yards of waste. The landfill employs 20 people and has an annual
payroll of $890,000.
Owner or operator must also demonstrate that new landfills,
in this case the expansion approved by the Kane County Board,
will be in compliance with Subpart C of Section 811. According
to the petitioner, this demonstration will vary significantly
5
from an application filed solely for an existing landfill. WNII
asserts that the variance would also avoid wasting the Agency’s
resources and time in needlessly reviewing a second application
that would soon become obsolete. The Agency acknowledges that
requiring petitioner to prepare and the Agency to review an
unnecessary second application would needlessly waste the time
and resources of both parties. (Agency Rec. at 3.)
As discussed above, WNII has sought both a horizontal and
vertical expansion of the landfill, and reconfiguration of the
existing landfill area, which the Kane County Board has already
approved. The expansion design will provide a maximum capacity
of 5,500,000 additional compacted cubic yards of waste. However,
prior to filing the permit application for expansion with the
Agency, WMII must negotiate a new Operating Agreement with Kane
County. It is the need to renegotiate the Operating Agreement,
and WMII’s desire to avoid piecemeal filings, which gives rise to
WMII’s request for an additional six months in which to file the
application for significant modification of an existing municipal
solid waste landfill.
COMPLIANCE WITH OTHER REGULATIONS; ENVIRONMENTAL IMPACT
Petitioner asserts that it is in compliance with the
existing Resource Conservation and Recovery Act Subtitle D
requirements (Pet. at 4) and is operating pursuant to an interim
permit issued in October, 1993. The landfill has a low
permeability soil liner, final cover in place on certain portions
of the landfill area, and systems in place for leachate
collection, treatment and control, gas collection and control,
and groundwater monitoring. Additionally, WMII asserts that the
variance will have no adverse environmental impact; the September
18, 1994 deadline from which WMII seeks a variance is a deadline
for submission of information, rather than a deadline for the
implementation of any requirements. Such information will be
submitted no later than six months from this deadline. The
Agency agrees that WMII’s requested variance would be consistent
with all applicable federal law.
AGENCY RECOMMENDATION
The Agency recommends that the variance be granted, without
conditions. The Agency has investigated the facts alleged in the
petition, and pursuant to 35 Ill. Adm. Code 104.180(b), has made
an effort to ascertain the views of the persons who might be
affected by the grant of the requested variance; the Agency has
published in a newspaper of general circulation in the county
where the facility is located and for which the variance is
sought, a legal notice and solicitation to ascertain the views of
those persons who might be affected. In addition, the Agency has
sent notice of the petition to the appropriate state legislators
and county officials. As of the date of the Agency’s
6
recommendation, the Agency has received no responses to the
newspaper notice. Accordingly, the Agency is of the opinion that
a six—month extension is reasonable under the circumstances of
this case, and recommends that the Board grant the petition for
variance.
CONCLUSION
Based on the petition and Agency recommendation, the Board
finds that requiring WMII to comply with the Section 814.104(c)
deadline for filing its application for significant modification
of the Settler’s Hill Landfill would impose an arbitrary or
unreasonable hardship on WMII. 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. WMII has agreed to submit a
complete permit application, known as an application for
significant permit modification, which will satisfy the
compliance requirements. We therefore grant WNII the requested
six-month variance from the deadline set forth in 35 Ill. Adm.
Code 814.104(c). WMII now has until March 18, 1995 to file its
application for significant modification, at which time it must
demonstrate facility—wide compliance. Additionally, the City of
Geneva’s motion to intervene is denied for having failed to
receive a majority vote of the Board.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Waste Management of Illinois, Inc. (“WMII”) is hereby
granted a variance from 35 Ill. Adm. Code 814.104(c) to terminate
on March 18, 1995.
Within forty-five days of the date of this order, WHII shall
execute and forward to:
Robert J. Scherschligt
Division of Legal Counsel
Illinois Environmental Protection Agency
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
a certificate of acceptance and agreement to be bound by all
the terms and conditions of the granted variance. 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. The
form of the certificate is as follows:
7
I (We), _____________________________________
hereby accept and agree to be bound by all terms and
conditions of the order of the Pollution Control Board
in PCB 94-212, dated October 6, 1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
R.C. Flemal, G.T.Girard and E.Dunham concurring.
Section 41 of the Environmental Protection Act (415 ILCS
5/41 (1992)) 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.
~
also 35 Ill. Adm. Code 101.246, “Motions for Reconsideration”.)
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby ceçtify that the apove~pinion and order was
adopted on the
~-~---
day of
&—~Z~—A~
1994, by a vote of
7K) ~
~
Dorothy M. Gq~’in, Clerk
Illinois Po~7utionControl Board