ILLINOIS POLLUTION CONTROL BOARD
    September 4, 1997
    ILLINOIS LANDFILL, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 97-205
    (Variance - Land)
    OPINION AND ORDER OF THE BOARD (by G.T. Girard):
    On May 16, 1997, Illinois Landfill, Inc. (ILI) filed a petition for variance (Pet.). ILI
    is seeking a one-year variance from the Board’s landfill regulations at 35 Ill. Adm. Code
    814.301 and 35 Ill. Adm. Code 814.Subparts C and D. The Illinois Environmental Protection
    Agency (Agency) on June 13, 1997, recommended that the variance be granted. On June 6,
    1997, the Board received an objection to the variance, and a hearing was thereafter scheduled.
    On July 25, 1997, a hearing was held before Board Hearing Officer Deborah Frank.
    At that hearing, comments were provided by members of the public as well as the Agency and
    ILI. The Board appreciates the comments at hearing and has considered those comments.
    However, the Board finds that Section 814.301 does not currently apply to petitioner, so no
    variance is necessary. Therefore, the Board denies the petition for variance.
    REGULATORY BACKGROUND
    In 1990, the Board updated and replaced the existing landfill regulations with Parts
    810-815. See Development, Operating and Reporting Requirements for Non-Hazardous Waste
    Landfills (August 17, 1990), R88-7, slip op. at 2. Under the new regulations at 35 Ill. Adm.
    Code 814, the Board set forth procedures for the upgrade or closure of existing landfills.
    Those procedures include a requirement that exiting landfills notify the Agency of estimated
    closure dates as well as notifying the Agency which Subpart of the new regulations apply to
    the facility. 35 Ill. Adm. Code 814.103. The procedures also include a requirement that an
    application for a significant modification to permits be filed within 48 months of the effective
    date of the rules. 35 Ill. Adm. Code 814.104. Thus, in order to remain open and accept
    waste, a facility which was in existence in 1990 would be required to file an application for
    significant modification by September 18, 1994.
    The 1990 amendments also provided that existing landfills canremain open for an
    “indefinite period of time beyond seven years” if the standards of 35 Ill. Adm. Code
    814.Subpart C are met. 35 Ill. Adm. Code 814.301(a).
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    FACTS
    ILI owns and operates a non-hazardous solid waste landfill in Hoopeston, Vermilion
    County, Illinois. Pet. at 3. On November 25, 1992, ILI submitted an application to the city
    of Hoopeston for the expansion of the existing landfill. Pet. at 3. The expansion was finally
    approved on November 7, 1995. ILI received two variances from the Board which extended
    the September 18, 1994 deadline for submission of the application for significant modification
    to September 18, 1996. See Illinois Landfill Inc. v. IEPA (December 1, 1994), PCB 94-200;
    Illinois Landfill Inc. v. IEPA (September 19, 1996), PCB 95-162. ILI applied for a
    significant modification to its permit on September 11, 1996. Pet at 4. At this time ILI is
    responding to the Agency’s technical review of the application. Pet. at 4.
    On April 24, 1997, the Agency sent a letter to petitioner stating that if the facility had
    not received a significant modification permit by September 18, 1997, Section 814.301
    required the facility to stop accepting waste. Pet. at Exh A. The Agency stated in part:
    Our files indicate that your facility has not yet received its first significant
    modification of permit.
    35 Ill Admin [sic] Code Section 814.301 requires closure pursuant to 35 Ill.
    Admin [sic] Code Part 814.Subpart D. . . for those non-hazardous waste
    landfills that cannot demonstrate, through a significant modification permit
    application and Illinois EPA inspection, compliance with the more stringent
    requirements of 35 Ill. Admin [sic] Code Part 814.Subpart C . . .. Further,
    Subpart D requires Subpart D landfills to stop accepting waste by September 18,
    1997. Therefore if you landfill facility has not received its first significant
    modification of permit before September 18, 1997, you must stop accepting
    waste and comply with applicable regulations. Pet. at Exh. A.
    DISCUSSION
    The Board finds that 35 Ill. Adm. Code 814.301 does not currently apply to petitioner.
    Therefore, ILI need not stop accepting waste at this time pursuant to that Section. As Section
    814.301 does not apply to ILI, no variance is necessary and the Board denies the petition for
    variance.
    The Board’s decision that Section 814.301 does not apply to ILI is based on an August
    7, 1997 Board decision in Land and Lakes Company v. IEPA, (Land and Lakes) PCB 97-209.
    In Land and Lakes, the Board found that petitioner did not need a variance from Section
    814.301 as Section 814.301 did not apply to petitioner. The Board noted that it was premature
    for the Agency to determine the facility does not comply with 35 Ill. Adm. Code 814.Subpart
    C. Land and Lakes at 4. The Board stated:
    Until the Agency completes its evaluation of petitioner’s significant modification
    application, it is not clear under which subpart the facility will be regulated.
    Therefore, the Agency has no basis for ordering petitioner to cease accepting
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    waste at the facility and that order is therefore void. As a result, Section
    814.301 does not currently apply to petitioner and no variance is necessary.
    Land and Lakes at 4.
    The Board also found that Section 814.105(b) does apply to Land and Lakes and would
    allow petitioner to continue to operate. Land and Lakes at 4-5. Section 814.105(b) provides:
    An owner or operator who has timely filed a notification pursuant to Section
    814.103 and an application for significant permit modification pursuant to
    Section 814.104 shall continue operation under the terms of its existing permits
    until final determination by the Agency on its application and any subsequent
    appeal to the Board pursuant to Section 40 of the Act. During this time, the
    owner or operator will be deemed to be in compliance with all requirements of
    this Part. 35 Ill. Adm. Code 814.105(b).
    The facts surrounding the Board’s decision in Land and Lakes and the facts in this
    proceeding are substantially the same. In both cases the Agency mailed a letter on April 24,
    1997, informing the petitioner that the facility would have to close pursuant to Section 814.301
    if a significant modification was not issued by September 18, 1997. In both cases the
    application for the permit had been filed and the Agency’s review was continuing. The
    Agency had not denied either significant modification application. Thus, the Board finds that
    the facts of these two proceedings are sufficiently similar to require the same outcome.
    Therefore, the Board denies the petition for variance requested by ILI as the variance is not
    necessary.
    This opinion constitutes the Board’s findings of fact and conclusions of law.
    ORDER
    1. The Board denies the petition for variance and dismisses this case.
    2. The docket is closed.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
    the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
    order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
    R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above opinion and order was adopted on the 4
    th
    day of September 1997, by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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