ILLINOIS POLLUTION CONTROL BOARD
July 21, 1994
USA WASTE SERVICES, INC.,
)
Petitioner,
v.
)
PCB 94-92
(Variance)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
OPINION AND ORDER OF THE BOARD (by M. McFawn):
On March 18, 1994 USA Waste Services, Inc. (USA Waste) filed
a petition for a variance for its Countryside Landfill. By order
dated March 31, 1994, this petition was found to be deficient,
since it failed to include a request for hearing or a statement
waiving hearing with supporting affidavits. (35 Ill. Adm. Code
104.124.) Petitioner filed an amended petition on April 6, 1994
which provided a waiver of hearing and supporting affidavit. As
set forth in our March 31, 1994 order, the filing of this amended
petition restarted the Board’s decision timeclock under Section
38 of the Environmental Protection Act (Act) (415 ILCS 5/38
(1992).) The Illinois Environmental Protection Agency filed its
recommendation and response to the petition for variance on May
10, 1994, recommending that the variance be granted, subject to
certain conditions.
In its petition for variance, USA Waste seeks a six—month
variance from the requirements of 35 Iii. 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. USA Waste seeks a six—month
extension of this deadline. For the reasons set forth below, we
grant the requested variance.
BACKGROUND
According to its petition, USA Waste is the owner of the
Countryside Landfill, which is located on an approximately 80-
acre site 0.5 miles south of Illinois Route 137, between Illinois
Route 83 and the Wisconsin Central Railroad, in Lake County. The
site is located on property owned by Countryside Landfill, Inc.,
and/or Lakeland Properties, Inc, both of which are wholly owned
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by USA Waste.
Formerly known as the A.R.F. Landfill, the facility began
operations in 1976. The landfill was purchased by USA Waste on
June 30, 1991, and was renamed the Countryside Landfill. The
landfill is currently designed and permitted to contain
approximately 12,000,000 compacted cubic yards of waste, and is
expected to reach capacity by October 1997.
The Countryside Landfill is a “Subpart C facility,” subject
to the rules set forth in Subpart C of 35 Ill. Adm. Code 814.
(Petitioner’s Br. at 5; Agency’s Br. at 2.) This subpart applies
to all existing units accepting chemical and putrescible wastes
that may remain open for more than seven years beyond September
18, 1990, the effective date of Part 814 of the Board’s
regulations.
USA Waste intends to seek both a horizontal and vertical
expansion of the landfill. The expansion will be designed to
provide a capacity of 14,400,000 compacted cubic yards of waste,
which USA Waste estimates will provide a minimum of twenty—one
additional years of waste disposal capacity. In its variance
petition, USA Waste indicates that it will file a petition for
siting approval for this expansion on or around April 8, 1994,
and will apply for a permit from the Agency as soon as siting
approval is obtained.
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) (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
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term of the variance.
HARDSHIP
Under Section 814.104(c), USA Waste 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, USA Waste will be required to re-
file its application for significant modification, incorporating
the changes resulting from the expansion. USA Waste seeks a six—
month 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. USA Waste 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’s Br. at 4.)
COMPLIANCE WITH OTHER REGULATIONS; ENVIRONMENTAL IMPACT
Petitioner asserts that it is in compliance with all federal
and state requirements, and that it has also already met or
exceeded several of the requirements set forth for existing
landfills under Section 814.302. These include the installation
of a final cover system on the east slope of the landfill,
installation of an intermediate cover system with vegetation on
the west slope of the landfill, installation of an intermediate
gas collection system on the east and west slopes of the
landfill, and extensive landscaping of perimeter berms and
landfill slopes. (Petitioner’s Br. at 5.) Additionally, USA
Waste asserts that the variance will have no environmental
impact, since it will only extend the filing deadline set forth
in 814.104(c). The Agency agrees that USA Waste is in compliance
with all federal requirements, but as set forth in greater detail
below, the Agency believes the variance may affect petitioner’s
compliance with other regulations, and therefore its potential to
impact the environment.
AGENCY RECOMMENDATI ON
The Agency recommends that the variance be granted, but
requests that the variance be conditioned upon compliance with
the requirements in Section 814.302 and the incorporated
provisions of Part 811. The Agency asserts that, since USA Waste
is only seeking a variance from the requirements of Section
814.104(c), the requirements of Section 814.302 should be applied
to USA Waste during the period of the variance. The Agency
recommends that this be accomplished by requiring USA Waste to
4
file an application for permit modification pursuant to Section
807.210, demonstrating how it will comply with the requirements
of Section 814.302 during the 6-month period of the variance.
CONCLUSION
The Board acknowledges the Agency’s concerns. However,
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.
Based upon the record, the Board finds that requiring USA
Waste to comply with the Section 814.104(c) deadline for filing
its application for significant modification of the Countryside
Landfill would impose an arbitrary and unreasonable hardship on
USA Waste. 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. USA Waste has agreed to submit a complete
permit application, known as an application for significant
permit modification, satisfying Section 830.104, thereby
demonstrating compliance with Section 830.302 upon expiration of
the variance.
Requiring USA Waste to file an application prior to
completion of the siting process for its proposed expansion would
result in USA Waste subsequently filing a second, largely
duplicative application, and would unnecessarily waste the time
and resources of USA Waste and the Agency. We therefore grant
USA Waste the requested six—month variance from the deadline set
forth in 35 Ill. Adm. Code 814.104(c). USA Waste is now given
until March 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.
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ORDER
USA Waste Services (USA Waste) 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, USA Waste 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 Pollution Control Board
in PCB 94—92, dated July 21, 1994.
Petitioner
Authorized Agent
Title
Date
IT 1S SO ORDERED.
6
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. (See
also 35 Ill. Adm. Code 101.246. “Motions for Reconsideration”.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the a ye opinion and order was
ado1ted
on the
~/.-~-1-
day of
______________
1994, by a vote of
~DorothyM.
~ymn,
~U.Clerk
£
Illinois Poijution Control Board