ILLINOIS POLLUTION CONTROL BOARD
January 23, 1992
LAND
and
LAKES
COMPANY,
)
)
Petitioner,
)
v.
)
PCB 91—217
)
(Variance)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
ORDER OF THE BOARD
(by N.
Nardulli):
This matter is before the Board on the Illinois Environmental
Protection
Agency’s
(Agency)
January
6,
1992 motion
to
dismiss
petitioner’s
amended
variance petition.
On
December
24,
1991,
petitioner Land and Lakes Company (Land and Lakes) filed an amended
petition for variance from 35 Ill. Adm. Code 814.501(b) and 814.104
seeking to operate its landfill for one year beyond the two-year
deadline set forth
in the regulations.
The Agency asks that the
variance petition be dismissed because the relief sought is not the
proper subject of a variance.
A review of the Board’s landfill regulations is necessary to
understand the instant
case.
Part
814 addresses what are often
referred to as the transition provisions between the Board’s old
and new landfill regulations.
The regulations from which Land and
Lakes seeks variance provide that an exisiting landfill must close
by September 18, 1992
(i.e. two years after the effective date of
the Board’s new landfill regulations adopted
in R88-7)
unless
it
can demonstrate compliance with the stricter operating, closure and
post-closure
care
standards
of
Subpart
B,
applicable
either
to
landfills remaining open for more than seven years1, or Subpart
D,
applicable to landfills remaining open between two and seven years.
The standards set forth in Subpart D, applicable to Land and Lakes
because
it
seeks
to
remain
open
three
years,
in
large
part
reference Part
811, which sets forth the standards applicable to
new landfills.
(35 Ill.
Adm.
Code 814.402.)
Only if a landfill
closes within the two—year period may. it continue to operate under
its present
permit and close under the closure and post—closure
care provisions of Part 807 of the old landfill regulations.
(35
Ill.
Adm.
Code 814.104(a)
and 814.502(a)
and (b).)
Those landfills seeking to stay open beyond seven years
must demonstrate compliance with the strictest standards
in Part
814.
(See ~.g.,
35 Ill.
Adia.
Code 814.301 and
814.302.)
129—3 13
2
By its variance petition, Land and Lakes seeks to continue to
operate
its landfill for one year beyond
the two year closure
provisions in Part 814 of the Board’s new landfill regulations and
to be allowed to remain subject to its existing permits,
issued
prior
to the new regulations,
under Part 807 of the Board’s old
landfill regulations.
Land and Lakes contends that it has limited
disposal capacity remaining at its landfill but that it “does not
make economic sense” to comply with the requirements applicable to
new landfills (Part 811).
Land and Lakes estimates that compliance
with Part 811 would be in excess of $2.1 million for one additional
year of ~operation.
Land and Lakes
seeks an additional year
of
operation so that
it may fill
its landfill to capacity without
having to comply with the new landfill regulations.
Land and Lakes proposed compliance plan is as follows:
“The
proposed
method
to
achieve
compliance with
the
act
(sic
and
regulations would
be
to
operate,
close and provide post—closure
care for the facility
in accordance with all existing state and
local permits
issued pursuant to Section
(sic
807,
as well
as
applicable federal, State and local regulations.”
The.
Agency
contends
that the
variance petition
should
be
dismissed
because
“Land
and
lakes
does
not present
a
plan
or
timetable by which it will ultimately achieve compliance with the
applicable regulations, namely the Section (sic
811 regulations if
it remains in operation until September 18,
1993
...
(Therefore,
the
relief
sought
here
by
Land
and
Lakes
is
not
the
relief
envisioned by the variance concept.”
Citing City of Mendota
V.
Pollution Control Board,
161 Ill. App.
3d 203,
514 N.E.2d 218
(3d
Dist.
1987), the Agency states that “Land and Lakes seeks permanent
exemption from these regulations, which is not the proper subject
of a variance petition.”
Land
and
Lakes
asserts
that
it
is
not
seeking
permanent
exemption from Part 811; rather,
it seeks an extension of time to
close its facility under part 807.
According to Land and Lakes,
it
“will
comply with
the Part
807
regulations
and will
close
in
accordance with the existing permits in full compliance with those
regulations.
All it seeks is additional time to do so.”
Land and
Lakes contends that the Agency is mistaken when it claims that Land
and Lakes is seeking a permanent exemption.
DISCUSSION
Section
104.121(f)
requires
a
petition
for
variance
to
include:
A
detailed
description
of
the
existing
and
proposed
method
of
control
to
be
undertaken
to
achieve
full
compliance with the Act and regulations, including a time
schedule for the
implementation
of
all
phases
of the
control
program
from
initiation
of design
to program
129—314
3
completion
and the estimated costs
involved
for
each
phase and the total cost to achieve compliance
The requirement that a variance petition include a compliance plan
is consistent with the purpose of
a variance which is to provide
temporary relief while encouraging future compliance.
(Monsanto
Co.
v.
PCB,
67
Ill.
2d
276,
367 N.E.2~ 684
(1977).)
“(The
variance procedure is not intended as
a mechanism for seeking a
permanent exemption from the Act.”
(City of Mendota
v.
PCB,
161
Ill. App.
3d 203,
514 N.E.2d 752
(3d Dist.
1987).)
Here,
the only regulations from which Land and Lakes seeks
variance
are
those
that
require
a
landfill
to
either:
(1)
demonstrate compliance with the new landfill regulations such that
the landfill may stay open between two and
seven years
or;
(2)
close within two years and remain under the old regulations.
The
one year extension of time
sought by Land
and Lakes
precludes
compliance, with
the regulations which
are the
subject
of
this
variance.
It
is
impossible
for Land and
Lakes to’receive
the
requested relief of operating under the old regulations for three
years
from
the
effective
date
of
the
Board’s
new
landfill
regulations and achieve future compliance with regulations which
require that operations cease within two years.
Land and Lakes
mistakenly
equates
a
request
for
an
extension of
a
regulatory
deadline
with
a
variance
petition.
As
noted
above,
while
a
variance
allows
one
time
to
achieve
compliance,
it
also
contemplates
ultimate
compliance.
Such
compliance
cannot
be
achieved by variance in the instant case.
Rather
than
seeking
temporary
relief
from
the
two—year
deadline, Land and Lakes actually seeks permanent relief from ever
having to demonstrate compliance with the stricter new regulations
seeking, instead, to simply substitute the regulations in Part 807.
Given that Land and Lakes is requesting to initiate closure between
two and seven years,
the following “between two and seven year”
provisions
of
Part
814
automatically
apply
(35
Ill.
Adm.
Code
814.401(a)):
(a)
The standards in this Subpart are applicable to all
existing units of landfills, including those exempt
from permit requirements in accordance with Section
21(d)
of
the
Act,
that have accepted
or
accept
chemical
and
putrescible
wastes.
Based
upon
an
evaluation of the information submitted pursuant to
Subpart A
and
any Agency
site
inspection,
units
that meet the requirements
of this Subpart
shall
initiate closure between two and seven years after
the effective date of this Part.
(b)
Based
upon
an
evaluation
of
the
information
submitted pursuant to Subpart A and any Agency site
129—315
4
inspection,
units which are unable to comply with
the requirements of this Section are subject to the
requirements
of
Subpart
E
the
two—year
closure
requirement.
consequently,
if
a
landfill
seeks
to
continue accepting
waste
beyond the two-year deadline but will initiate closure within seven
years, it must demonstrate compliance with the applicable standards
set forth
in Part 814 which refer to Part 811.
Landfills which
cannot
demonstrate
compliance with the stricter
standards must
close
wi’thin two years
in accordance with the old regulations.
Land and Lakes cannot amend these regulatory provisions by way of
a variance.
The Board’s transition provisions anticipated the very
situation.in which Land and Lakes finds itself.
Relief is provided
for in the regulations:
Land and Lakes may continue to operate
beyond the two-year deadline but there is a price to pay in that
the new regulations must be met.
In conclusion, Land and Lakes seeks to exercise the option of
staying open beyond two years,
but wants to avoid ever complying
with the stricter standards.
Land and Lakes has not requested
relief from immediate compliance with the “between two and seven
year” provisions
of Part 814, nor has
it presented a
compliance
plan or time schedule for achieving ultimate compliance with the
standards applicable to landfills seeking to operate beyond the
two—year
deadline.
Consequently,
Land
and
Lakes
is
seeking
permanent
relief
from
Part
814
and Part
811
by
attempting
to
“extend” the two-year deadline allowing a landfill to close under
the
old landfill
regulations.
Land
and
Lakes
petition
is,
in
essence, an attempt to amend the Board’s new landfill regulations
by way of variance and improperly seeks permanent relief.
For
the
foregoing reasons,
the Board
grants
the
Agency’s
motion to dismiss Land and Lakes’ amended petition for variance.
IT IS SO ORDERED.
Section
41
of
the Environmental Protection Act
(Ill.
Rev.
Stat.
1989,
ch.
111
1/2,
par.
1041)
provides for the appeal
of
final Board orders.
The Rules of the Supreme Court of Illinois
establish filing requirements.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Bo~rd,,hereby ce
fy that the above Order was adopted on the
A—~-~
day of
__________________,
1992 by a vote of
1—c
/~~J
Dorothy N. ,~inn,Clerk
Illinois P6llution Control Board
129—316