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

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