ILLINOIS POLLUTION CONTROL BOARD
January 18,
1991
;ALLA~TINNATIONAL COMPANY,
)
)
Petitioner,
)
)
PCB 90—183
)
(Variance)
LLINOIS
ENVIRONMENTAL
)
~ROTECTION AGENCY,
)
Respondent.
~HOMAS
R.
MULROY,
JR.
AND
REBECCA
RAFTERY,
JENNER
&
BLOCK,
ON
3EHALF
OF
PETITIONER.
~ARK
V.
GURNICK,
WILLIAM
D.
INGERSOLL
AND
SUSAN SCHROEDER, ILLINOIS
E~NVIRONMENTAL
PROTECTION
AGENCY,
ON
BEHALF
OF
RESPONDENT.
.~IICHAELF.
KUKL1~ ON
BEHALF
OF
INTERVENORS FAIRVIEW AREA CITIZENS
.4REA
TASK
FORCE.
DPINION AND ORDER
OF
THE
BOARD
(by
J.
Anderson):
This
matter
comes
before
the
Board on a petition for variance
filed
October
9,
1990
by
Gallatin
National
Company
(Gallatin).
~allatin
requests
a
variance from “the regulations contained in 35
Ill.
Athn.
Code
Section
(sic)
812
until
October,
1991.”.
On
November
15,
1990,
the
Illinois Environmental Protection Agency
(Agency)
filed
it
recommendation
stating that
the
request
for variance
should be denied.
On November 26,
1990,
Fairview Area Citizens
task Force
(FACT) filed
a petition for intervention.1
On November
29,
1990,
a hearirtg was held
in
Fairview,
Illinois at which 150-
200 members
of the public
attended,
a
number
of whom testified
either in favor of or against the grant of variance.
BACKGROUND
In January,
1989,
the Village of •Fairview granted Gallatin
site location approval for Gallatin’s proposed 80—acre balefill to
be located in Fairview, Illinois.
This approval was upheld by both
the Board and the appellate court.
(Fairview Area Citizens Task
Force
v.
Village
of
Fairview,
PCB
89—33
(November
26,
1989);
Fairview Area Citizens Task Force
v.
PCB,
555 NE.2d
1178
(4th
1
Tr.
—
indicates
citation to the transcripts
of the
November 29,
1990 hearing.
R.
—
indicates citation to
the record.
The record indicates that no one objected
to FACT’S petition for intervention.
(Tr. at
8.)
The
hearing officer granted FACT’s petition.
(Tr.
at 9.)
118—97
2
Dist.
1990).)
The
Supreme
Court
of
Illinois
denied
FACT’s
petition
for
leave
to
appeal.
(Fairview
Area
Citizen’s
Area
Task
Force
v.
~,
No.
70478
(October
3,
1990).)
On
September
11,
1989,
Gallatin
submitted
its
initial
application
to
the
Agency
for
a
development
permit.
(Pet.
Ex.
B.)
On
March
9,
1990,
the
Agency
issued
its
denial
letter
setting
forth
nine
reasons
for
denying
the
application.
(Pet.
Ex.
A.)
On
April
23,
1990,
Gallatin
filed
its
second
development
permit
application
addressing
the
nine
denial
reasons given by the Agency.
Gallatin waived the Agency’s decision
deadline to December 19,
1990 and, man
October 25,
1990 order,
the Board tolled that decision during the pendency of this variance
proceeding.
This second permit application is still pending before
the Agency.
During the pendency of this second permit application, the
Board was proceeding with its R88—7 rulemaking concerning new non-
hazardous
waste
landfill
regulations
(hereinafter
referred
to
as
the
“R88—7
regulations”
or
“new
regulations”).
(R88-7
Second
First
Notice
adopted
March
1,
1990;
R88-7
Second
Notice
adopted
June
7,
1990;
R88-7
Final
Opinion
and
Order
adopted
August
17,
1990.)
On
August
1,
1990,
at
an
informational
hearing
in
Fairview,
the
Agency
suggested
that
it
might
apply
the
R88-7
landfill
regulations
to
Ga1latin’s~pendingpermit application.
(Pet.
Ex.
D; Tr.
at 87.)
On September 18, 1990, the R88-7 regulations became effective.
On
September 20,
1990,
the Agency met with Gallatin and stated its
intent
to
apply
the
new regulations to Gallatin and asked
that
Gallatin
review
the
R88-7
regulations
and
ascertain
whether
its
application
was
in
compliance
with these newly enacted regulations.
(Pet.
Ex.
A
at
17;
Tr.
at
108.)
On
September
27,
1990,
Gallatin
submitted
a
memorandum
to
the
Agency
reviewing
each
provision
of
the R88-7
regulations
and
providing
information
as
to
how
the
pending application satisfied these new requirements.
(Pet.
Ex.
A at 17; Pr. 108—09.)
On October 4,
1990, the Agency notified Gallatin that it would
apply the R88-7
regulations
in its review of Gallatin’s pending
application.
(Pet.
Ex. A at 18.)
This letter stated “because
the application under review does not meet all of the requirements
of the
new rules
and adequate time does not exist
for you
to
compile all of the necessary information, you may wish to withdraw
the application or waive the Agency’s mandatory decision deadline.
If no waiver is received or the application is not withdrawn,
then our decision will be based on the regulations in effect and
the information before us at the time of our decision.”
(Pet.
Ex.
A at 18.)
Attached to this letter is a list of thirty requirements
which the Agency’s preliminary review revealed were not met by the
application.
(Pet. Ex. A at 18.)
The letter also stated that more
problems
might
be
discovered
during
further
review
of
the
application
and
recognized
that
the
Agency
had
not
yet
reviewed
Gallatin’s
memorandum
of
September
27,
1990.
(Pet.
Ex.
h
at
18.)
One of the items listed by the Agency is that the “application
did not include a description of the groundwater quality standards
118—98
3
applicable at the facility including a specific numerical value for
each
constituent and
including an evaluation
of the background
concentrations of each constituent based on
a
quarterly sampling
of wells for one year pursuant to
35)
Ill.
Adxn. Code 811.320 and
812.317(1).”
(Pet.
Ex. A at 18.)
Further meetings were held between the Agency and Gallatin.
On October
9,
1990,
Gallatin filed
its variance petition.
The
filing of the variance petition operated to automatically
stay
application of part 812 to Gallatin.
(Ill.
Rev.
Stat.
1989,
ch.
111. 1/2,
par.
1038 (b).)
By order entered October
25,
1990,
the
Board
tolled the agency’s decision deadline
imposed by Section
39(a)
of the Act during
the pendency of the
stay.
The
above
background
information
is
intended
to
illustrate
the
interrelationship of the instant variance proceeding to the pending
permit application, in light of the enactment of R88-7 regulations
during the Agency’s review
of that application.
By
filing its
variance petition, Gallatin is seeking relief from compliance with
certain provisions of the new regulations governing information to
be
included
with
a
permit
application.
Moreover,
if
such
a
variance were granted, the Agency could not deny Gallatin’s permit
application on the basis of the regulation which is the subject of
this variance.
On November 9,
199.0, the Agency
sent Gallatin
a
letter
stating
that
it
would
treat
Gallatin’s
September
27,
1990
memorandum as a modification to the permit application and that
Gallatin should not presume that any issues had been resolved until
the Agency issued its final permit decision.
(Res.
Ex.
A.)
PRELIMINARY ISSUES
Several
motions
are
pending
in
this
matter
that
must
be
addressed by the
Board.
On November 26,
1990,
Gallatin filed
a
motion to strike the Agency’s recommendation.
The Agency responded
on December 4,
1990.
Gallatin seeks to strike the recommendation
on
the basis
that
it does
not
comply with
35
Ill.
Adin.
Code
104.180(a) governing the contents of the recommendation.
The Board
finds that the unusual posturing of this matter, which prevents
this
case
from
falling
neatly
into
a
traditional
variance
proceeding, also prevents the Agency’s recommendation from falling
neatly within the requirements of Section 104.180(a).
Therefore,
Gallatin’s motion to strike is denied.
On December 27,
1990, FACT
filed a motion to strike portions of Gallatin’s brief.
Paragraph
1 of FACT’s motion is denied for reasons explained below on page
7.
Paragraphs
2—4
of
FACT’s motion to strike are hereby granted
because Gallatin did not introduce certain information
into
the
record at hearing.
On December 31, 1990, the Agency filed a motion
to file its attached brief instanter.
The motion is granted.
DISCUSSION
Initially,
the
Board
must
address
the
modification
of
118—99
4
Gallatin’s request
for relief as
set
forth
in
its petition for
variance and the relief requested as evinced by the record and as
argued in Gallatin’s post-hearing brief.
In its variance petition,
Gallatin states that
it
seeks
a variance from “the regulations
contained
in
35 Ill.
Adin.
Code Section
(sic)
812 until October,
1991.”
(Pet.
for
Variance
at
1.)
These
regulations
are
part
of
the
Board’s
new
landfill
regulations
which
became
effective
September
18,
1990.
By
its
variance
petition,
Gallatin
seeks
to
avoid application of Part 812 of the R88-7
regulations governing
“Information To Be Submitted
In A Permit
Application”,
to
its
pending
permit
application.
Gallatin’s
application
has
been
pending before the Agency since April 23, 1990, approximately five
months
prior
to
the
effective
date
of
the
new
regulations.
Gallatin alleges in its petition that “retroactive” application of
the new regulations to its pending permit application would impose
an arbitrary and unreasonable hardship upon Gallatin and that no
adverse
environmental
impact
would
result
if
the
variance
were
granted.
Gallatin lists
four regulations
as
“examples”
of how
application of the new regulations would impose an arbitrary and
unreasonable hardship on Gallatin.
(Pet.
for Variance at 11-16.)
Gallatin also alleges that
it
is
“in compliance with the great
majority of the new rules.”
(Pet.
for Variance at 2.)
However,
Gallatin reiterates in its request for relief that it
is seeking
a variance from Part 812.
Although Gallatin’s petition for variance requests relief from
the “retroactive” application of all
of Part 812,
testimony and
evidence adduced at hearing and in its post-hearing brief establish
that
Gallatin’s
asserted
concern
is
with
35
Ill.
Adm.
Code
812.317(1).
Gallatin repeatedly stated in its petition, at hearing
and
in
its brief that
it believes
it is in compliance with all
other
aspects
of
the R88-7
regulations,
with the exception
of
Section
812.317(1),
which
requires that the permit
application
include four quarterly groundwater data to establish background
concentrations for certain constituents.
(Pet. for Variance at 2;
Tr. at 37—8,
54,
150,
192 and 232; Brief at
3,
4,
8—9, 10,
14, 16—
17,
24,
28,
and
30.)
Gallatin
asserted
that
its
pending
application was prepared with reference to the R88-7 regulations.
(Tr.
at
143.)
Gallatin offered no evidence
at hearing
on how
compliance with any other section of the new regulations
would
result in the imposition of a hardship, much less an arbitrary or
unreasonable hardship.
Therefore,
the Board will not rule upon
Gallatin’s compliance with the provisions of Part 812 other than
812.317(1); such a determination lies with the Agency in its permit
review process, subject to Board review in a permit appeal.
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
pars.
1039
and
1040.)
However,
Gallatin’s
assertions
of compliance
are important
because
they
establish
that
Gallatin
has
narrowed
its
variance
request
to
Section 812.317(1).
Since Gallatin offered no evidence at hearing
regarding relief from any regulation other than Section 812.317(1),
the Board must find that, to the extent any other relief is sought,
Gallatin has failed to carry its burden and such relief is denied.
118—100
5
Before
addressing
the
merits
of
Gallatin’s
petition,
discussion of some transition provisions provided in the R88-7 is
needed.
The regulations define what is a new facility, or new unit
at a facility,
in
35 Ill.
Adin.
Code 810.103.
35
Ill.
Adm. Code
Part 814 addresses generally the requirements
for both new
and
existing disposal units within existing landfill facilities with
ongoing
operations,
and how
long they can continue to
operate
depends on the level of compliance which they have achieved or can
achieve with the new regulations.
For example, a landfill, already
permitted and operating, that wishes to keep an operating unit open
for more than seven years must have design and operating capability
at
the
highest
possible
level
consistent
with
the
technical
regulations applying to new units; they are given relief only from
such things as location standards or retrofitting their existing
leachate
collection
system.
(35
Ill.
Adm.
Code
814.301
and
814.302.)
Only existing facilities initiating closure within two
years
can utilize the provisions
of old Part
807 permits;
all
others must go
through the
transition
requirements
of
the new
regulations
by
way
of
permit
modification
to
their
existing
permits.
Gallatin,
however,
is
not
at
the
stage
where
it
has
an
existing permit to modify, much less an ongoing operation.
Hence,
Gallatin does not qualify for the transition relief provided for
in the new regulations.
We disagree with Gallatin assertion that
Section
812.317(1)
should not be applied to
its pending permit
application.
Gallatin is clearly a new landfill pursuant to the
following definition of “new facility” set forth in Part 810 of the
R88-7 regulations:
“New facility” or “New unit” means a solid waste landfill
facility or a unit at a facility,
if one or more of the
following conditions apply:
It
is
a
landfill
or
unit
not
exempt
from
permit requirements pursuant to Section 21(d)
of
the
Act
that
has
no
development
or
operating permit issued by the Agency pursuant
to 35 Iii. Adm. Code 807 as of the effective
date of this Part;
or
...
.“
(35 Ill.
Adin.
Code 810.103.)
Therefore,
absent a grant of variance, an adjusted standard
or a site-specific regulation by the Board, Gallatin is subject to
all the regulations applicable
to new
landfills,
including the
provisions
of
Part
812
regarding
the
contents
of
the
permit
application as well as the technical provisions as set forth
in
Part
811.
118—101
6
Thus
Gallatin’s
alleged
hardship
is
associated
with
the
application of the new rules during the pendency of
its permit
application, but prior to Agency decision, and the potential loss
of a construction
season that could result from having to start
over with a new application.
Specifically, the remaining question
is
whether
Gallatin
should
receive
a
variance
from
Section
812.317(1) of the new regulations.
HARDSHIP AND
ENVIRONMENTAL
IMPACT
A petitioner
seeking a variance must prove that
immediate
compliance
with
the
regulation
would
impose
an
arbitrary
or
unreasonable
hardship
and
that
hardship
resulting
from denial
would outweigh any injury to the environment.
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.l035;
Unity Ventures
v.
PCB,
476 N.E.2d
1368 (2d Dist.
1985).)
Section
812.317(1)
of the new regulations
provides
that
“tt)he
permit
application
shall
contain
a
groundwater monitoring plan which demonstrates compliance with 35
Ill.
Adin.
Code
811.318
and
811.319
and which
includes
...
a
description of the groundwater quality standards applicable at the
facility pursuant to 35 Ill. Adm. Code 811.320
...
.“
35 Ill. Adm
Code 811.320
requires
that background
concentrations “shall
be
established based on four quarterly sampling of wells for one year
.“
The Board agrees with the Agency’s interpretation that the
these regulations require that the four quarterly sample results
be submitted with the permit application.
The
regulation
from
which
Gallatin
seeks
a
variance
requires
that
an
applicant
provide
certain
information,
accumulated
over
a
period
of
one
year,
with
its
permit
application.
(35
Ill.
Adm.
Code
812.317(1).)
Viewed
in
the
context of the instant matter,
there are two components to this
regulation:
(1) the “time deadline” requiring that the information
be submitted with the application;
and
(2)
the substantive data
accumulated pursuant to the regulation.
Gallatin claims hardship
only with
the delay
associated
with
compliance with the
“time
deadline”
aspect
of
Section
812.317(1);
denying
Gallatin’s
variance request and requiring compliance with Section 812.317(1)
would
mean
that
Gallatin
would
have
to
begin
the
permit
application process anew,
from the beginning.
Gallatin’s vice-president, Douglas Keats, testified that such
a delay could result
in the loss of at least
one
“construction
season” and could increase construction costs approximately $2.5
million.
(Tr.
at 46—51.)
Keats
also testified that the delay
would
cause
Gallatin
to
lose
refuse
contracts.
(Tr.
at
51.)
Keats opined that the denial of the variance would cost Gallatin
between
$3—4
million.
(Tr.
at
53.)
Keats
stated
that
no
contracts
to
accept
refuse
had
been signed,
but
that,
in
any
event,
no such contracts could be signed until Gallatin obtained
its permit.
(Tr.
at
59.)
Keats also testified,
by way of
an
offer
of
proof,
that the
Village of Fairview
(Fairview)
would
118—102
7
suffer a financial loss if the project is delayed.
(Tr.
at 48-
50.)
In
support
of
this
allegation
of
hardship,
Gallatin
introduced its annexation agreement with Fairview which provides
for
a
“tippage
fee”
sufficient
to
reimburse
Fairview
for
its
direct costs associated with the annexation and maintenance of the
balefill and provides that residents of Fairview will
be given
preference in employment.
(Pet.
Ex. F at
8 and 12;
Tr. at 268.)
Numerous members of the public testified in support of Gallatin,
stating that the community was in dire financial straits and that
the facility would improve this situation.2
(Tr. 167-237.)
The Board
finds that Gallatin has established that both
it
and the Village of Fairview would incur
financial hardship as
a
result of the delay associated with denial of the variance.
The
Board
rejects
the Agency’s and FACT’S
contention that,
in the
instant proceeding, evidence of hardship to Fairview is irrelevant
and that such evidence is restricted to hardship incurred by the
petitioner.
The Board has not refused to consider evidence of the
effect of hardship on those other than the petitioner where such
evidence
is
sufficient
and
relevant.
(See
e.g.,
Citizens
Utilities Co.
v.
IEPA, PCB 88-151
(March 8,
1990); City of Geneva
v.
IEPA, PCB 86-225
(July 16,
1987); Stephen Drake et al.
v. IEPA
and City of Pontiac, PCB 81—54
(December 17,
1981); Clem Juris
V.
IEPA, PCB 80-68
(September
4,
1980).)
In any event, Gallatin has
submitted sufficient evidence of its hardship, standing alone,
to
qualify for a variance.
The hardship in this case is incurred as
a
result
of the
unusual
circumstances presented here where
an
applicant qualifies as a new facility and, hence, must comply with
the new regulations, but its permit application was filed prior to
the effective date of the new rules.
A grant of variance in this
instance would only
excuse Gallatin
from that part of Section
812.317(1)
requiring that the information be submitted with the
permit
application,
allowing Gallatin to submit this information
at a later date.
Such
a variance is consistent with the purpose
of the transition provisions
of the new regulations.
Requiring
Gallatin to go back and start the permit application process anew,
absent a finding that a grant of variance would result in adverse
environmental
impact,
would
constitute
an
arbitrary
or
unreasonable hardship.
The Board
recognizes
that
if variances were granted every
time financial hardship was incurred as
a result of compliance,
variances
would
be granted
routinely.
This
is
not
the
case,
however, because relief will be granted only when the hardship is
arbitrary
or
unreasonable
when
compared
to
the
benefits
it
produces.
(Environmental Protection A~encvv.
Lindgren Foundry
~
PCB 70-001 at 6
(September
25,
1970).)
Hence, the Board must
2
The
Board
also
notes that many residents of Fairview and
people from the surrounding area testified in opposition
to
the
variance.
(Tr.
167—237.)
118—103
8
weigh the hardship imposed on Gallatin against the environmental
impact resulting from a grant of variance.
Gallatin introduced
the testimony of Roberta Jennings,
a hydrogeologist,
in support of
its
claim
that
granting
the
variance
would
not
result
in
significant adverse environmental impact.
Jennings testified that
the purpose of Sections 812.317(1),
and Section 811.320 which
is
incorporated
by
the
former
section,
is
to
establish
a
background
concentration which is to be considered the applicable standard at
the
compliance
point.
(Tr.
at
16-17.)
Four
quarterly
data
is
required
to
determine
any
statistically
significant
seasonal
variation occurring naturally in the groundwater.
(Tr.
at
17.)
Jennings testified that allowing Gallatin to collect the remaining
data
as requested would not result
in any adverse environmental
impact “unless you are doing any large scale disturbance rate near
the well
...
or in some manner significantly altering conditions,
the background
is still going to be what it is.”
(Tr.
at 20.)
Jennings also stated that although the possibility of background
change
resulting
from
site
disturbance
depends
on
the
site,
Gallatin’s background “does not vary a great deal.”
(Tr. at 21.)
On
cross—examination,
Jennings
was
asked
to
define
a
“significant disturbance.”
(Tr. at 24.)
Jennings testified “it
would haveto be upgrading
(sic) of a well and fairly close to the
well.
It would also depend on the nature of the activity.
For
example, at this particular site, there are no major roadways, no
major
farm
fields, that would cause a great deal of fluctuation of
the
background
constituents.”
(Tr.
at
24.)
According
to
Jennings,
minor
development
activity
would
not
harm
the
groundwater.
(Tr.
at
24—25.)
Jennings
also
opined
that,
depending on the site, no significant activity should occur within
200
—
500
feet
of
the
well.
(Tr.
at
24-25.)
Jennings
also
testified
that
completion
of
the
groundwater
model
is
not
dependant on the
four quarterly groundwater data.
(Tr.
at
27-
32.)
The
Agency
introduced -the
testimony
of
Kevin
Rogers,
an
Environmental Specialist III with the Hydrogeologic Investigation
Unit of the Agency.
Rogers testified that the Agency interprets
Section 812.317(1)
as requiring submission of the four quarterly
sample results with the permit application.
(Tr. at 246.)
Rogers
opined that it
is important that the four quarterly groundwater
data be submitted with the permit application to be used as “a new
procedure
in the form
of
a
location
standard.”
(Tr.
at
242.)
According to Rogers, this data would be used to calculate a site-
specific water quality
standard prior to the development of the
site in order to determine whether the design of the site would be
protective of the groundwater quality.
(Tr.
at 242-43.)
Rogers
stated that this was his
“personal
interpretation”
of
the new
regulations and that
he was not aware
of the Agency’s official
position.
(Tr.
at 247.)
The
Board
agrees
with the Agency
that Section
812.317(1)
118—104
9
requires
that
the
data
be
submitted
with
the
application.
Elowever, the Board disagrees with the Agency’s recommendation that
~al1atin should not receive relief from the “time deadline” aspect
of this regulation.
As noted above,
a grant of variance
in
this
case would
not
allow Gallatin to postpone compliance with
any
other provisions of the new regulations other than that portion of
Section
812.317(1)
requiring that
the
four quarter
groundwater
data be submitted with the permit application.
Jennings testimony
establishes
that
the
environmental
concern
associated
with
granting the instant variance is that of construction activities
disturbing the background
concentration
levels.
The Board
has
addressed these concerns in condition no.
1 below which restricts
construction—related activities within 500 feet of the wells.
The record establishes that the specific values of background
concentration
are
not
necessary
for
purposes
of modeling
and
design.
It is only necessary for Gallatin to show that there will
be no increases
in the concentrations of constituents above the
background at a compliance point
(beyond 100 feet)
in 190 years,
as a result of operations at the facility.
However, the specific
numerical concentrations that are established as background are
needed, and must be included in a permit, because they become the
groundwater
quality
standard
applicable
to
that
site
to
show
compliance.
Groundwater
monitoring
continues
throughout
the
design life of the facility.
Based upon such monitoring, if there
is
sufficient
reason
to
believe
that
the
initial
established
background
is
in error,
an applicant would
submit
a request to
change the established background by way of permit modification.
While in most instances the Board would be reluctant to grant
a
variance from a provision of Part
812 because the provisions
of
the new regulations are interrelated, the requirements of Section
812.317(1)
are
separable
from
other
components
of
the
permit
information
requirements
for
purposes
of
the
instant
permit
decision.
The
Board
finds
that
Gallatin has
established
that,
subject to certain construction conditions,
allowing it to submit
the groundwater data required by Section 812.317(1)
in the manner
provided for below will not result
in any adverse environmental
impact.
COMPLIANCE
PLAN
The
record
establishes
that
Gallatin
has
submitted
the
results of one of the quarterly samples of background groundwater
quality,
the second quarter groundwater quality data were to be
collected on December 7,
1990, the third quarter’s data are to be
collected on March
2,
1991 and the final quarter’s data is to be
collected on May 25,
1991 and submitted to the Agency no later
than June,
1991.
(Pet.
Ex.
H;
Tr.
at
19-20.)
The Board
finds
Gallatin’s compliance plan is acceptable, subject to the condition
imposed
below
that
it
submit
each
remaining
quarterly
sample
result within
7 days of receiving the result.
1 18—105
3.0
CONSISTENCY
WITH PEDERAL LAW
The Agency
states
in
its
recommendation that
a
grant
of
variance will not violate any applicable federal law.
SUMMARY
In summary, the Board reiterates that this opinion and order
is restricted in its scope to 35 Iii.
Admu.
Code 812.317(1).
The
Board
finds
that
Gallatin
has
established
that
immediate
compliance with that portion of Section 812.317(1) which requires
that four quarterly groundwater data be submitted with the permit
application would impose an arbitrary and unreasonable hardship
upon
Gallatin.
The
Board
also
finds
that,
subject
to
the
condition that no significant construction-related activity take
place within 500 feet of the wells before completion of the final
quarter sampling,
the environmental effects of granting Gallatin
relief from the “time deadline” portion of Section 812.317(1)
are
minimal.
Therefore, the Board concludes that the Agency shall not
deny Gallatin’s pending permit application on the basis that the
four quarterly groundwater data required by Section 812.317(1) was
not submitted with Gallatin’s permit application.
The parties have not raised any arguments as to the date of
the Agency’s decision deadline on the pending permit.
We note
that
the
tolling
of
the
Agency’s
decision
deadline,
and
the
automatic
stay pursuant to Section
38(b)
of
the
Act,
end upon
adoption of this opinion and order in accordance with the Board’s
previous order of October 25,
1990.
Without discerning what date
the Agency’s decision is due,
it appears that,
at
a minimum, two
months remained before the Board tolled the decision timetable and
that it is possible that Gallatin will have submitted the results
of
all
but the
final
quarter
data.
Gallatin has
two choices
pursuant to the conditions set forth
in the accompanying
order
depending on
the
date of
the
Agency’s decision deadline.
If
Gallatin has submitted to the Agency the final data required by
Section
812.317(1)
three
weeks prior
to
the Agency’s
decision
deadline, the Agency shall consider this information in rendering
its permit decision and shall not deny the permit on the basis of
Gallatin’s
failure to submit this
information with
its
initial
application.
In the event that Gallatin does not accumulate and
submit the requisite data at least three weeks prior to the date
the Agency’s decision on the pending permit is due, Gallatin shall
submit
this information by way of permit modification to be filed
no later than three weeks after it collects the final sample and
no later than one week after obtaining the results of that sample.
This Opinion
constitutes the Board’s
findings
of
fact
and
conclusions of law in this matter.
ORDER
118—106
3.3.
Gallatin National Company is hereby granted
a variance from
(a)
that portion of 35 Ill.
Admu.
Code
812.317(1)
which requires
that certain data be included with its initial permit application,
(b)
35 Ill.
Admit.
Code 813.103(d)
in accordance with Paragraph
3
below
and
(C)
35
Ill.
Admit.
Code
813.204
in
accordance
with
Paragraph
4
below
for
its
facility to be
located
in
Fairview,
Illinois, subject to the following conditions:
1.
No significant construction-related activity shall take
place within
500
feet
of
the
groundwater monitoring
wells
from which the quarterly samples
are
taken
for
determining background concentrations before the
final
quarterly sample is taken.
2.
Gallatin shall submit to the Agency the results of the
quarterly
samples
of
groundwater
used
to
establish
background
not heretofore
submitted within
7
days
of
obtaining each quarter’s results.
3.
If Gallatin submits the data derived from the results of
the four quarterly samples
to the Agency
at least
21
days
prior
to
the
Agency’s
permit decision
deadline
date,
the
Agency
shall
consider
such
information
in
rendering
its
decision
on
Gallatin’s
pending
permit
application.
Such a
submittal shall not constitute
a
new application for purposes of calculating the Agency’s
decision deadline date.
4.
If Gallatin fails
to
submit the data derived
from the
results
of
the
four
quarterly samples
on
background
concentrations pursuant to 35 Ill.
Admit.
Code 812.317(1)
at least 21 days prior to the Agency’s decision deadline
date,
the
Agency
shall
render
its
decision
on
the
pending
permit,
but shall not deny the permit
on the
basis
of Gallatin’s failure to submit such information
with its initial permit application.
In the event that
Gallatin does not timely file its data derived from the
results of the four quarterly samples,
Gallatin shall
file such data
as
a permit modification no later than
three weeks after it collects the final quarterly sample
and no later than one week after obtaining the results
of
the
final
sample.
The Agency’s
decision
on the
permit modification shall
issue no later than
21 days
after the permit modification is filed.
5.
This variance shall
terminate on the date the Agency’s
decision is due
on
the permit modification
pursuant
to
Paragraph 4 above or upon the date the Agency’s decision
is due on the pending permit pursuant to Paragraph
3
above, whichever occurs first.
6.
Within 45 days after the date of this opinion and Order,
118—107
12
Gallatin shall execute and send to:
Mark V. Gurnik
Illinois Environmental Protection Agency
Division of Legal Counsel
220 Churchill Road
P.O. Box 19276
Springfield, IL. 62794—9276
a certificate of acceptance of this variance by which it
agrees to be bound by the terms and conditions contained
herein.
This variance will be void if Gallatin fails to
execute and forward the certificate within
the
45-day
period.
The 45-day period shall be held in abeyance for
any period during
which the matter
is
appealed.
The
form of the certification shall be as follows:
CERTIFICATION
I,
(We),
,
having read
the Opinion and Order of the Illinois Pollution Control Board in
PCB
90-183,
dated
January
18,
1991,
understand
and accept
said
Opinion and Order, realizing such acceptance renders all terms and
conditions thereto binding and enforceable.
Petitioner
Authorized Agent
Title
Date
Section
41
of the Environmental
Protection Act
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1041)
provides for appeal of final
Orders
of the Board within
35
days.
The Rules
of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
118—108
13
B. Forcade concurs.
J.
D. Dumelle dissents.
I, Dorothy N.
Gunn,
Clerk of the
Illinois
Pollution
Control
t
t the above Opinion and Order was adopted
Board, he~~certify
ha
____
1991 by a vote,pf
6 .-/
on the
/
day of
______
Illinois ~llution
Control Board
unn, Clerk
118—109
