ILLINOIS POLLUTION CONTROL BOARD
August
11,
1994
ENVIRITE CORPORATION,
d/b/a COUNTY ENVIRONMENTAL OF
)
LIVINGSTON,
)
Petitioner,
PCB 94—161
v.
)
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by
E. Dunham):
This matter comes before the Board on a petition for
variance filed by Envirite Corporation
(Envirite)
on May 26,
1994.
The Illinois Environmental Protection Agency (Agency)
filed its recommendation on June 30,
1994.
Envirite filed its
response to the recommendation on July 11,
1994.
Petitioner
waived its right to a public hearing and no hearing was held.
Envirite 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.
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.
Envirite
is seeking an
extension of the filing requirement until the completion of its
pending siting approval.
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 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)
(1992).)
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.
2
BACKGROUND
Petitioner owns and operates the Livingston Landfill and the
Livingston Residual Waste Landfill in Livingston County,
Illinois.
(Pet. at 2.)
The Livingston Landfill has a permitted
facility and waste boundary area of about 79 and 52 acres
respectively.
(Pet.
at 6.)
The Livingston Residual Waste
Landfill currently has a permitted facility and waste boundary of
94 and 55 acres,
respectively.
(Pet. at 6.)
The two facilities
are located adjacent to each other approximately three miles
north of Pontiac, Illinois.
(Pet. at 2.)
The facilities serve
the non—hazardous waste disposal needs of Envirite’s Harvey,
Illinois hazardous waste treatment plant as well as the non—
hazardous special waste and general municipal waste needs of
Pontiac, Livingston County and surrounding areas.
(Pet.
at 2.)
Envirite has sixteen full-time employees.
(Pet. at 6.)
Stricter state and federal regulations which resulted in
numerous landfill closures, coupled with changing market
conditions,
have resulted in a steady increase in waste receipts
at the Livingston Landfill
in recent years.
(Pet.
at 3.)
Envirite is seeking to expand its facility in order to continue
to serve its customers needs.
(Pet. at 3.)
The expansion would
include both a lateral and vertical expansion resulting in two
waste disposal units at the facility.
(Pet. at 3.)
On April 29,
1994, petitioner filed its request for local siting approval for
a regional pollution control facility with Livingston County.
(Pet. at 3.)
Livingston County must take final action on the
siting request within 180 days of the filing or before October
26,
1994.
(Pet. at 3.)
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).)
The Agency requested that petitioner file its
applications for significant permit modification by February and
June 1994.
(Pet.
at 2.)
However, petitioner has requested an
extension of this deadline which has not yet been acted upon by
the Agency.
(Pet. at 2.)
AGENCY RECOMMENDATION
The Agency generally concurs with the facts expressed in the
petition.
(Ag.
Rec. at 2.)
The Agency acknowledges the
duplicative nature of filing two significant modification
applications pursuant to Section 814.104(c)
and 813.201(a)
for
the same facility as well as the arduous task imposed on both the
petitioner and the Agency in preparing and reviewing the two
applications.
(Ag.
Rec.
at 3.)
3
The Agency believes that the variance request is
unreasonable
in terms of its duration.
(Ag. Rec. at 4.)
The
Agency contends that an appeal could last for a substantial
period of time, possibly years.
(Ag. Rec. at 4.)
The Agency
recommends that the variance be granted with conditions for a
period of six months from September 18,
1994.
(Ag. Rec. at 5.)
The Agency recommends that petitioner be required to submit an
application for supplemental permit establishing compliance or
assurance of compliance with leachate monitoring,
gas monitoring
and groundwater monitoring as prescribed in 35
Ill. Adm. Part
811.
(Ag. Rec. at
5.)
PETITIONER’ S RESPONSE
Petitioner argues that the Agency failed to explain or
justify its recommendation that the variance be granted for a six
month period.
(Resp.
at 2.)
Petitioner contends that a six month
variance
is unreasonably short and fails to address the objective
of the variance.
(Resp. at 2.)
Petitioner contends that a six
month period will not encompass the time period for the first
step in the appeal process i.e. appeal of the County Board’s
decision to the Pollution Control Board.
(Resp. at 3.)
The
petitioner further contends that if an extension of the variance
were needed, petitioner would need to file a petition for
extension only two months after the variance was granted.
(Resp.
at 4)
Petitioner requests that the variance be granted for 12
months from the date the siting decision becomes final.
(Resp. at
5.)
In the alternative, petitioner requests that the Board grant
the variance for
a period of one year from September 18,
1994.
(Resp. at 5.)
Petitioner believes that a period of one year
provides for the possibility of an appeal and also allows
petitioner the opportunity to request an extension of the
variance if the siting decision is further appealed.
(Resp.
at
5.)
As a second alternative, petitioner requests that the Board
grant the variance for alternate periods dependant on whether the
siting decision is appealed.
(Pet. at 6.)
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)
(1992).)
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.)
4
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 grant of 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), Envirite
is required to file an
application for significant modification by September 18,
1994.
Upon completion of the siting process for the proposed expansion,
if the expansion is approved,
Envirite will be required to re—
file its application for significant modification,
incorporating
the changes resulting from the expansion.
Petitioner seeks a
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.
Petitioner 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.
Petitioner states that it can avoid $190,000 in costs which would
be incurred to prepare two separate permit applications.
(Pet.
at
13.)
COMPLIANCE WITH OTHER REGULATIONS; ENVIRONMENTAL IMPACT
Envirite maintains that during the term of the variance,
it
will continue operations under the terms of its existing permits
in accordance with 35
Ill. Adm. Code 814.105(b).
Petitioner
maintains that the requested variance will have no impact on the
environment.
(Pet.
at 13.)
Petitioner represents that the
variance
is consistent with federal law.
(Pet. at 16.)
CONCLUSION
Based upon the record, the Board finds that requiring
Envirite to comply with the Section 814.104(c) deadline for
filing its application for significant modification of the
landfill would impose an arbitrary and unreasonable hardship on
Envirite.
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.
Petitioner has agreed to submit a complete permit
application, known as an application for significant permit
modification,
satisfying Section 814.104,
thereby demonstrating
compliance with Section 814.302 upon expiration of the variance.
5
Requiring Envirite to file an application prior to
completion of the siting process for its proposed expansion would
result in petitioner subsequently filing a second,
largely
duplicative application, and would unnecessarily waste the time
and resources of petitioner and the Agency.
We therefore grant
petitioner a variance from the deadline set forth in 35
Ill. Adm.
Code 814.104(c).
Petitioner requests that the variance be granted from
September 18,
1994 until
12 months after the siting decision is
final.
The Agency recommends that the variance be granted for six
months from September 18,
1994.
The Board does not find any
support for the six months duration recommended by the Agency and
finds that six months is an inadequate period if the siting
decision is appealed.
The Board will not grant a variance for an indefinite period
because the length of a variance
is limited to five years.
(415
ILCS 5/36(b)
(1992), Lone Star Industries
v.
IEPA (October 29,
1992),
PCB 92-134.)
The term of the variance requested by the
petitioner represents an indefinite period as it relates to the
undeterminable date of a final decision in the siting process.
If the siting approval is appealed it is possible that the length
of this variance would exceed five years.
Therefore,
the Board
will grant the variance for a period of 12 months from September
18,
1994.
Envirite is now given until September 18,
1995,
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
Envirite is hereby granted a variance from 35 Ill.
Adm. Code
814.104(c)
to terminate on September 18,
1995 for Livingston
Landfill and the Livingston Residual Waste Landfill in Livingston
County,
Illinois.
Within forty-five days of the date of this
order,
Envirite shall execute and forward to:
John Burds
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
6
appealed.
Failure to execute and forward the certificate within
45 days renders this variance void.
The form of the certificate
is as follows:
I
(We),
,
hereby
accept and agree to be bound by all terms and conditions of the
order of the Illinois Pollution Control Board in PCB 94-161,
August 11,
1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
N. NcFawn concurred.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days of the date of service of this order.
The Rules
of the Supreme Court of Illinois establish filing requirements.
(See also 35
Ill. Adm. Code 101.246, Motion for Reconsideration.)
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify tha
he above opinio
and order was
adopted on the
______________
day of __________________________
1994,
by a vote of
~
—O
~
~
Dorothy N.
G~4I1n, Clerk
Illinois Po~utionControl Board