ILLINOIS POLLUTION CONTROL BOARD

October 14, 1976

ARCH

DEVELOPMENT,

INC.,

Petitioner,

v.

)

PCB 76—168

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Preston K. Johnson,

Sr., Attorney, appeared for the Petitioner;

Donald

S.

Means, Technical Advisor, appeared for the Respondent.

OPINION AND ORDER OF THE BOARD

(by Mr.

Zeitlin):

The Petition in this matter was filed on June

1,

1976,

by

Arch Development,

Inc.

(Arch),

seeking relief from the development

permit requirement for solid waste management sites.

In an addendum

to

that

Petition,

filed on June

7,

1976,

Petitioner more clearly

specified

the

requested relief as being from Section 21(e)

of the

Environmental Protection Act

(Act)

and Rule 201 of Chapter

7: Solid

Waste, of this Boardts Rules and Regulations.

Ill.

Rev.

Stat.,

Ch,

111—1/2, §1021(e) (1975);

Ill. PCB Regs.,

Ch.

7,

Rule

201.

The

Environmental

Protection Agency

(Agency)

filed its Recommendation

on

July

22,

1976.

Pursuant to authorization by the Board

granted

June

3,

1976,

a hearing was held in Belleville,

St. Clair County,

Illinois, on August

19,

1976.

The subject of this Variance is a solid waste management site

in Centreville Township, Cahokia,

St. Clair County,

Illinois,

(R.

4).

The site, originally a borrow pit utilized in the construction of

a

levee, was purchased by Petitioner from the Alton

& Southern

1~L~iirodd or

~

(H.

4,’~)

.

Arch

pJ~iii~

Lo

III

in

(ho

11—dora

saucer—shaped

borrow

plt;

with

demolition

was

Las

rain

ha

razin~jat

lou

i ~

Pruitt

1

(jOO

~uhli

C

lloiis

iIl(j

Pro

JOCL

arid

s~Vora 1

1 a

hotels in

the

St. Louis metropolitan area;

after filliny,

the

area

is to be covered with dirt and used for farming purposes,

(R. 4-10)

Because the site is located

in the flood plain of the Mississippi

River,

the Agency has refused to issue development or operating

permits,

Under those circumstances, Petitioner

is requesting a

Variance from the permit requirements

to allow development,

operational filling,

and final closing of the site

(all within

approximately one year)

without the required permits.

The site in question has been before the Board previously,

in

EPA

v.

Arch

Development,

Inc.,

PCB 75—474,

—~

PCB

—

(May 20,

1976).

In

that

case,

Arch

admitted

to operation on the site without the

required permits

in violation of Rules 201 and 202(a)

of the Solid

Waste Rules, and agreed to an $850 penalty and the discontinuance

of all refuse disposal activities by February 19,

1976.

24

—

67

---

—2—

Petitioner claims in support of the requested Variance that

it will suffer an irreparable harm if development and completion

of the site

is not allowed, and

that: the property on which the site

is located

will

have essentially no value in its present state,

entailing

a

loss of the $11,500 purchase price,

(R.

16)

.

Petitioner

has also invested approximately $51,000 for a Caterpillar tractor,

(R.

10)

,

and approximately $10,000

in other operational improvements,

many of which were required to comply with the previous Agency

inspections,

(R.

10).

Since operations

on the site ceased in

accordance with the Order in PCB 75—474,

contributions by individual

shareholders have been necessary for Arches survival,

(R.

13)

Petitioner also alleges that no environmental harm would result

from the operation of this site without the required permit.

To

avoid water pollution from a site subject to flooding,

Petitioner

proposes

to accept only demolition of a

‘~c1eant’ nature.

Much of

the Record

in this matter is concerned with Petitioner’s attempt

to

show that because of the “clean” nature of the fill

to be deposited

at the site,

the Board need not worry about various

water

pollution

problems raised by the Agency.

These include the use of rubble

from buildings with concrete

(rather than wooden)

floors,

and the

removal of all metal by Petitioner from those wastes,

(e.g.,

R.

15,

18—20).

In addition, Petitioner characterized the soil

undorlyinc~

the

site as “gumbo,” which Petitioner claims will

be impervious,

(R.

18)

.

Petitioner has also changed an original plan

to cover the

site

with

foundry

sand,

and

will

use

dirt

for that purpose instead,

(P.

8).

The Agency’s opposition to Arch’s development and operation

on this site stems largely from the fact that the site,

located

a

few hundred yards east of the Mississippi River

(P.

30),

is not

protected by levees from flooding of the Mis~:issippi.

In

a recent

Technical Policy Statement,

the Agency’s Division of Land/Noise

Pollution Control has essentially stated that no permits will be

issued

--

regardless of the type of refuse

to be deposited

--

for

any

site

any

portion

of

which

“would

lie

below

the

level

of

the

100—year

flood.

.

.

“

(Agency

Fx.

12)

.

Wo

nood

not

,

howovnr

,

(1

~h

va

I

i d

i

y

of

I

ha

1)0

I

cy

.

TIn

‘r~

~‘

r

I

(1

y

of

n

A

in’y

tin

i

I

den ia1~

i s not proper fy before

t he board

i n

a Var i anea matt~era I

LIlis

type.

Petitioner’s

burden

here

is

to

show

that

a

Variance

is

required

because

arbitrary

and

unreasonable

hardship

will

be

suffered

in

its

absence,

and

that

such

hardship substantially outweighs

the

likeli-~

hood

of

environmental

damage

resulting

from

operation

under

the

Variance.

This

Petitioner

has

failed

to

do,

24

—

68

---

—3-.-

With

regard

to

environmental

damage,

Petitioner’s

meager

testimony

concerning

the

soil

underlying

the

site

is

insufficient

to

show

that

leachate

from

this

s~to

will

not

percolate

into

the

groiridwater

sys~em,

and

possibly

flow

into

the

Mississippi

River.

Petitioner

has

not

shown

the

likelihood

of

flooding

with

any

data

as

to

frequency

or

severity,

although

it

admits

that

the

site

is

subject

to

flooding.

Petitioner’s

testimony

as

to

the

soil

is

vacue,

and

is

more

than

offset

by

Agency

testimony

that

an

adjacent

site

contains

highly

permeable

soil,

(P.

36)

.

Petitioner

stated

that

its

employees would

remove

the

metals

accompanying

the

demolition

wastes

to

be

landfilled,

(R.

21),

but

also

admitted

that,

“fwJell,

there

are

going

to

be

pieces

of

metal

that

are

going

to

go

in

too,”

(P.

20)

It

is

apparent

that

most

of

the

expenditures

relied

on

by

Petitioner

in

terms

of

hardship

occurred

during

operations

without

the

necessary

permit.

Such

hardship

is

unquestionably self-imposed.

S~1f-imnosedhardship may not form the basis for a Variance.

Petitioner has simply failed to provide this Board with facts

sufficient

to justify the grant of a Variance.

Although the Agency

failed

to present strong justification for the denial of the requested

Variance,

such is not the Agency’s burden in the absence of an

adequate showing by Petitioner justifying

a Variance grant.

This Opinion constitutes the findings of fact and conclusions

of law of the Board in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL that the Petition

for Variance of Arch Development,

Inc.,

in this matter be denied.

Mr. Jacob

D.

Dumelle concurred separately.

Mr. James Young

d.i

ssented.

I, Christen

L.

Moffett, Clerk of

the

Illinois

Pollution

Control Board,

her~,ebycertify t e above Opinion and Order we~e

adopted on the

____

day of

1976,

by

a vote of

44_I.

~

Christan L. Moffet /~lerk

Illinois Pollution’-e~titrolBoard

24

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