ILLINOIS POLLUTION CONTROL BOARD
August 11,
1994
MACON COUNTY LANDFILL CORPORATION,
)
)
Petitioner,
PCB 94—158
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 Macon County Landfill on May 25,
1994.
The
Illinois Environmental Protection Agency
(Agency)
filed its
recommendation on June 27,
1994.
Macon County Landfill filed its
response to the recommendation on July 6,
1994.
Petitioner
waived its right to
a public hearing and no hearing was held,.
Macon County Landfill 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.
Macon County Landfill
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 operates a sanitary landfill for disposal of non-
hazardous special wastes and municipal refuse in Macon County.
(Pet.
at 5.)
The landfill is located in a sparsely populated,
rural area southwest of Decatur and south of Harrisburg.
(Pet.
at
6.)
The existing site consists of approximately 212.5 acres and
includes 67 acres of disposal area,
including both active and in-
active disposal areas.
(Pet.
at 6.)
The landfill employs
approximately 27 people.
(Pet.
at.
6.)
The landfill receives approximately 250,000 tons of waste
per year.
(Pet. at 5.)
Wastes accepted by the landfill are
generated primarily by the city of Decatur, and all waste comes
from within Macon County.
(Pet.
at
5.)
The unexpected closing of
a neighboring landfill in 1992 produced a fifty percent increase
in daily refuse receipts at the existing landfill and decreased
the remaining landfill capacity.
(Pet.
at 5.)
Based on current
and anticipated waste acceptance rates,
the landfill has a
remaining disposal capacity of approximately two years.
(Pet.
at
5.)
On March
1994, petitioner filed its request for local siting
approval for a regional pollution control facility with the Macon
County Board.
(Pet.
at 3.)
The siting request includes a
proposed recycling facility and both lateral and vertical
expansion.
(Pet.
at
3.)
The County Board must take final action
on the siting request within
180 days or before September 5,
1994.
(Pet.
at 3.)
Section 814.104(c)
of the Board’s regulations requires the
operator of 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
application for significant permit modification in March
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 has inspected the landfill facility and has
attempted to ascertain views of persons who might be affected by
the grant of the variance.
(Ag. Rec.
at 2.)
The Agency generally
concurs with the facts expressed in the petition.
(Ag.
Rec. at
3.)
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 4.)
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 3.)
Petitioner requests that the variance be granted for 12
months from the date the Macon County Board’s decision becomes
final.
(Resp.
at 4.)
In the alternative, petitioner requests
that the Board grant the variance for a period of one year from
September
18,
1994.
(Resp.
at 4.)
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.)
Petitioner contends that the conditions recommended by the
Agency will require petitioner to file two significant permit
modification applications.
(Resp.
at 5.)
Petitioner does not
agree that the Agency has the authority to require petitioner to
be in compliance with Part 811 on or before September 18,
1994.
(Resp. at 7.)
STATUTORY FRANEWORK
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
4
(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.)
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), Macon County Landfill 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, Macon County Landfill
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
in excess of $175,000
in costs which would be incurred to
prepare two separate permit applications.
(Pet.
at 14.)
COMPLIANCE WITH OTHER REGULATIONS; ENVIRONMENTAL IMPACT
Macon County Landfill 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).
(Pet.
at 13.)
Petitioner intends to comply with all1 other
requirements of the Act and regulation.
(Pet. at 5.)
Petitioner
maintains that the requested variance will have no impact on the
environment.
(Pet.
at 10.)
Petitioner represents that the
variance is consistent with federal law.
(Pet.
at 15.)
CONCLUSION
Based upon the record,
the Board finds that requiring Macon
County 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 Macon
County Landfill.
As discussed above,
a variance
is
a temporary
5
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.
Requiring Macon County Landfill 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).
The Board finds that requiring petitioner to file a
supplemental permit application during the term of the variance
demonstrating how it will comply with the requirements of Section
814.302 would defeat the purpose of the variance.
Petitioner is
seeking the variance precisely to avoid filing an application
making this demonstration until such time as it has obtained
siting approval for its proposed expansion and can submit a
permit application demonstrating compliance with Section 814.302
at both the existing and expanded landfill areas.
The conditions
proposed by the Agency would result in the very waste and
duplication of effort that petitioner seeks to avoid.
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 of Macon County landfill 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.
Macon County Landfill 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.
6
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
Macon County Landfill
is hereby granted a variance from 35
Ill. Adm.
Code 814.104(c) to terminate on September 18,
1995 for
its facility
in Macon County,
Illinois.
Within forty—five days
of the date of this order, Macon County Landfill 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
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 94-158,
August
11,
1994.
Petitioner
Authorized Agent
Title
Date
IT IS SO ORDERED.
M. McFawn concurred.
7
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 that the above opini
and order was
adopted on the
//T~
day of________________________
1994, by a vote of
________
Dorothy M. Gt~, Clerk
Illinois PolijAtion Control Board